The Kurdish Human Rights Project, Legal Review - 2

The Kurdish Human Rights Project, Issue 1 [English, London, 2002]

The Kurdish Human Rights Project, Legal Review - 2 [English, London, 2002]

The Kurdish Human Rights Project, Legal Review - 3 [English, London, 2003]

The Kurdish Human Rights Project, Legal Review - 2

Kerim Yildiz
Mark Muller

KHRP

Compatibility of Armenian Legislation with ECHR Requirements
Armenia became a member of the Council of Europe (CoE) in 2001. Joining the European Council required that Armenia implement certain democratic reforms and take on new legal obligations in the field of human rights. In particular, after accession, Armenia ratified numerous human rights conventions, most notably the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 1953 and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Parliamentary Assembly of the CoE also required Armenia to reform its judicial system, adopt a law providing for alternative non-military service, and ensure nondiscrimination in the practice of religion by “non-traditional” religious communities.
This article analyses four areas related to basic human rights in Armenia that deserve particular attention: the right to life, the protection against torture, inhuman and degrading ...

Contents

Editorial / 9
Abbreviations / 10

Section 1: Legal Developments in the Kurdish Regions
Compatibility of Armenian Legislation with ECHR Requirements / 11
UN Committee on the Elimination of Racial Discrimination Reports on Armenia / 22
Committee for Prevention of Torture (CPT) visit to Georgia / 23
UN Human Rights Committee Considers Georgia / 25
Bill on Torture Rejected by Iranian Council of Guardians / 25
Iran Moves Towards Inviting the UN Commission on Human Rights (UNCHR) / 26
UN Delegation to Iraqi Kurdistan / 26
Committee for the Prevention of Torture (CPT) Visits to Turkey and F-type prisons / 27
Reforms to Death Penalty and Minorities Cultural Rights in Turkey / 29
State of Emergency Lifted in the Kurdish provinces, Turkey / 30
Recommendations for Reform of the European Court of Human Rights / 31
Striking Out - Dissent Revealed Amongst European Court Judges / 32
The Necessity of Fact-Finding Hearings in Cases of Gross Human Rights Violations / 33
The UN Economic and Social Council (ECOSOC) endorses
Draft Optional Protocol to the Convention against Torture (CAT) / 35
What Can We Expect from the International Criminal Court? / 36
By G. Bindman
The Principles of the European Convention on
Human Rights and the Response of States to Terrorism / 40
By C. Warbrick
Turkey’s August 2002 Reform Package and the Kurdish Language:
A Glimmer of Light / 67
By R. Dunbar

Section 2: Case Summaries and Commentaries
Category / Name of the Parties / Decision-Judgment Page

A. Case News
Extra-Judicial Killing / Andreou v Turkey (45653/99) / Communicated / 75
Disappearance / Ipek v Turkey (25760/94) / Admissibility / 75
Torture and Inhuman / Tepe (Talat) v Turkey (31247/96) / Admissibility / 77
or Degrading Treatment / Şen (Nuray) v Turkey (41478/98) / Admissibility / 78
/ Karagöz v Turkey (78027/01) / Communicated / 81
/ Duşun and Yasar v Turkey (4080/02) / Communicated / 81
Freedom of Expression / Karakoc and Demokrasi Baris
/ Partisi v Turkey (43609/98) / Communicated / 81
Destruction of Homes - Property / Eski v Turkey (44291/98) / Communicated / 82
Freedom of Assembly / Vatan (People’s Democratic Party)
and Association / v Russia (47978/99) / Communicated / 82
Freedom of Thought, / Helmi Baspinar v Turkey (45631/99) / Admissibility / 83
Conscience and Religion / Ozcan v Turkey (44199/98) / Admissibility / 86

B. Substantive
Extra-Judicial Killing / Haran v Turkey (25754/94) / Judgment / 88
/ Onen v Turkey (22876/93) / Judgment / 89
Unknown Perpetrator / Sabuktekin v Turkey (27243/95) / Judgment / 91
Killings / Ekinci v Turkey (27602/95) / Judgment / 95
Death in Custody / Orak v Turkey (31889/96) / Judgment / 98
Disappearance / T.A. v Turkey (26307/95) / Judgment / 101
/ Togcu v Turkey (27601/95) Judgment / 103
/ Orhan v Turkey (25760/94) / Judgment / 106
Access to Court / Kutit v Croatia (48778/99) / Judgment / 110
Destruction of Homes – Property / Matyar v Turkey (23423/94) / Judgment / 112
Freedom of Expression / Dichand and Others
/ v Austria (29271/95) / Judgment / 115
/ Unabhdngige Initiative
/ Informationsvielfalt v Austria
/ (28525/95) / Judgment / 116
Krone Verlag v Austria (34315/96) Judgment / 117
Gaweda v Poland (26229/95) Judgment / 118
E.K. v Turkey (28496/95) Judgment / 120
Freedom of Assembly Yasar, Karatas, Aksoy and HEP v Turkey
and Association (22723/93, 22724/93 and 22725/93) / Judgment / 123
Right to Free Elections Sadak and Others v Turkey
/ (DEP MPs) (25144/94, 2614954/95,
/ 27100-1/95) / Judgment / 127

C. Procedure
Non-Exhaustion of / Epözdemir v Turkey (57039/00) Admissibility / 132
Domestic Remedies
Six-month Limitation / Bayram and Yildrim (38587/97) Admissibility / 135
Period / Jovanovic v Croatia (59109/00) / Admissibility / 136
/ Hazar and Others v Turkey
/ (62566/00-62577/00 and
62579-62581/00) Admissibility / 134
Compensation / McCann v United Kingdom (18984/91) / Judgment / 138

Section 3: Appendices
1. Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in all Circumstances / 140
2. Withdrawal of Turkey’s derogation to Article 5 of the ECHR / 142
3. Council of Europe - Committee of Ministers’ Interim Resolution Res DH (2002) 98: Action of the Security Forces in Turkey, Progress Achieved and Outstanding Problems / 143
4. Harmonization Law (no. 4771) Adopted by the Turkish Grand National Assembly, 3rd August 2002 / 148
5. NGOs’ Response to the Report of the Evaluation Group on the European Court of Human Rights / 151

KHRP Publications 2001 & 2002 - Order Form / 158

Footnotes / 161

EDITORIAL

This is the second edition of the new Legal Review, published by the Kurdish Human Rights Project (KHRP). This edition considers the legal developments that have occurred in relation to the Kurdish regions of Turkey, Iraq, Iran, Syria and the Caucasus in 2002.

2002 was a significant year for the development of human rights legislation in the Kurdish regions. Turkey passed a reform package aimed at helping its accession to the EU, including the abolition of the death penalty (except in times of war or imminent threat of war) and the granting of certain cultural rights to Kurds. An illuminating article by Robert Dunbar argues about the real impact of the reform on the rights of Kurdish speakers. The package also abolished the state of emergency in two Kurdish provinces, leaving it remaining only in Diyarbakir and Sirnak, and withdrew its derogation to Article 5 (right to liberty and security) of the European Convention. Less positively, the Council of Europe issued a resolution condemning the actions of the security forces in Turkey, and the Committee for the Prevention of Torture released its most recent report on the continuing allegations of torture and ill-treatment in Turkey’s F-type prisons.

Furthermore, there is the possibility that the very first cases concerning Armenia or Azerbaijan may be brought to the European Court of Human Rights in 2002 or 2003, following their accession to the Council of Europe. In particular, the article on “Compatibility of Armenian Legislation with ECHR Requirements” analyses four main areas of concern on human rights within Armenian legislation (the right to life, the protection against torture, inhuman and degrading treatment or punishment, the right to privacy and family life, and the right to freedom of thought, conscience and religion) in relation with the requirements of the Council of Europe. The Committee for the Prevention of Torture also issued its first ever report on Georgia.

The debate over the 2001 Evaluation Group Report and the future of the European Court of Human Rights continues. KHRP has secured the support of 42 international human rights organisations in its response to the Report, reproduced herein. In a significant development, two judges of the European Court have cited identical concerns in their dissenting judgments to the use of the strikeout procedure in two KHRP cases: Togcu v Turkey (27601/95, 9.4.02) and T.A. v Turkey (26307/95, 9.4.02).

Finally, the possibility of an articulated definition of terrorism by the European Court of Human Rights is analysed by Colin Warbrick in his article, while, on the other hand, Geoffrey Bindman focuses on the role of the International Criminal Court and its effectiveness as a system of international criminal jurisdiction over crimes against humanity.

Kerim Yildiz
Executive Director

Section 1:

Legal Developments in the Kurdish Regions

Compatibility of Armenian Legislation with ECHR Requirements
Armenia became a member of the Council of Europe (CoE) in 2001. Joining the European Council required that Armenia implement certain democratic reforms and take on new legal obligations in the field of human rights. In particular, after accession, Armenia ratified numerous human rights conventions, most notably the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 1953 and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Parliamentary Assembly of the CoE also required Armenia to reform its judicial system, adopt a law providing for alternative non-military service, and ensure nondiscrimination in the practice of religion by “non-traditional” religious communities.

This article analyses four areas related to basic human rights in Armenia that deserve particular attention: the right to life, the protection against torture, inhuman and degrading treatment or punishment; the right to privacy and family life, and the right to freedom of thought, conscience and religion. The article attempts to asses whether current Armenian domestic law meets the requirements of the Council of Europe and points out areas where immediate legal reforms are required if Armenia does not want to be found in violation of international law and international obligations. The changes most urgently required are:

- the dejure abolishment of the death penalty;
- implementation of the laws banning forced confessions and maltreatment in places of detention;
- amendments to the Criminal Code decriminalising de jure consensual homosexual relationships between adults;
- clarifications of the relationship between church and state in the Law on Religious Organisations so that an equal treatment of all religious communities is ensured;
- adoption of a Law on Alternative Service providing for alternative non-military service for conscientious objectors;
- strengthening of an independent judiciary;

Armenia's Accession to the Council of Europe
Armenia applied for membership to the Council of Europe in March 1996. The application was considered in light of the enlargement of the Council of Europe. In this respect, the …

Kerim Yildiz
Mark Muller

The Kurdish Human Rights Project
Legal Review, (2002) 2

KHRP

Kurdish Human Rights Project
The Kurdish Human Rights Project
Legal Review, (2002) 2
Kerim Yildiz
Mark Muller

2 New Burlington Place
London W1S2HP
Tel: +44 20 7287 2772
Fax: +44 20 7734 4927
Email: khrp@khrp.demon.co.uk
http://www.khrp.org

Legal Review Editorial Board
Kerim Yildiz
Mark Muller
Tim Otty
Nicholas Stewart QC
Philip Leach
Anke Stock

Printed la Great Britain
August 2002

Honorary Presiden
Lord Avebury

Executive Director
Kerim Yildiz

Board of Directors
Chairman Mark Muller (Barrister)
Davinder Virdee (Solicitor)
Bridget Hughes (Surgeon)
Julian Ozanne (Journalist)
Gareth Peirce (Solicitor)
Paul Lewis (Editor)

Legal Consultant
Tim Otty (Barrister)

Representative in Scandinavia
Prof. Haci Akman

KHRP is a Company Limited by Guarantee.
Registered in England No. 2922108.
Registered Charity No. 1037236.

Printed in Great Britain
December 2002
Published by the Kurdish Human Rights Project

ISBN 1 900 175 55 X
All rights reserved.