CEDH · PRESS;GENERAL;ENG — 13 juillet 2004

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[1]     Ciszewski v. Poland (application no. 38668/97)   Violation of Article 5 § 1 The applicant, Leszek Ciszewski, is a Polish national who was born in 1959. He is currently in Starogard Gdański Prison in Poland.   In April 1994 the applicant was arrested on suspicion of murdering his wife and was placed in pre-trial detention. The Gdańsk Regional Court extended his detention until 18 April 1995, and on the following day the public prosecutor filed a bill of indictment with the court. On 30 December 1996 the court applied to the Supreme Court for an extension of the applicant’s detention, and the application was allowed on 16 January 1997.   In May 1997 the applicant was found guilty of murdering his wife and was sentenced to 25 years’ imprisonment. His sentence was reduced to 15 years on appeal.   Relying on Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights, the applicant argued that his detention from 19 April 1995 to 31 December 1996 had been unlawful because there had been no statutory basis for it at the material time.   The European Court of Human Rights observed that the Polish practice of keeping a person in detention under a bill of indictment had not been based on any specific legislative provision or case-law but had stemmed from the fact that Polish criminal legislation at the material time had lacked clear rules governing the situation of a detainee in court proceedings. The Court pointed out, in particular, that that practice, which had developed in response to the gap in the legislation, was in itself contrary to the principle of legal certainty. The protection afforded by the Convention against arbitrary deprivations of liberty would be seriously undermined if a person could be detained by order of the public prosecutor alone following a mere appearance before the judicial authorities.   The Court therefore held unanimously that the applicant’s detention from 19 April 1995 to 16 January 1997 had not been lawful within the meaning of Article 5 § 1. The Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. (The judgment is available only in French.)     Violation of Article 6 § 1 Lisławska v. Poland (no. 37761/97)   Violation of Article 13 The applicant, Elzbieta Lisławska, is a Polish national who was born in 1926 and lives in Gliwice, Poland.   She complained about the length of two sets of civil proceedings, concerning the construction of her home and her membership of a co-operative, which lasted more than 16 years and five weeks and more than 14 years respectively (of which the Court can take into account [2] over eight years and six months and over 11 years). She relied on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy).   The Court held unanimously that there had been a violation of Articles 6 § 1 and 13 and awarded the applicant EUR   10,000 for non-pecuniary damage. (The judgment is available only in English.)     Violations of Article 6 § 1 Zynger v. Poland (no. 66096/01)   Violation of Article 13 The applicant, Ryszard Zynger, who has dual Polish-Israeli nationality, was born in 1922 and lives in Frankfurt am Main (Germany).   The applicant and his family left Poland in 1948. In 1965 property belonging to the applicant’s family in Łódź and in Katowice was expropriated. The applicant could not take part in the expropriation proceedings, because the Polish authorities refused to grant him a visa to enter Poland.   The applicant complained about the length of the proceedings (the Łódź case is still pending and has already lasted six years and two months and the Katowice case lasted eight years and eight months). He relied on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy).   The Court held that there had been a violation of Article   6 § 1, unanimously, concerning the property in Łódź, and, by four votes to three, concerning the property in Katowice. The Court also held, unanimously, that there had been a violation of Article 13 and awarded the applicant EUR   7,200 for non-pecuniary damage and EUR   2,000 for costs and expenses. (The judgment is available only in English.)     Violations of Article 6 § 1   Violation of Article 1 of Protocol no. 1 Beneficio Cappella Paolini v. San Marino (no. 40786/98)   The applicant, Beneficio Cappella Paolini, is a San Marinese church institution. It is the former owner of land that was expropriated in 1985 for urban-development work. As part of the land was not used, the applicant brought several sets of proceedings in the civil and administrative courts in order to recover possession of the unused land.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property), the applicant complained of the length of the proceedings in the civil courts and submitted that there had been a denial of justice and an interference with its right to the peaceful enjoyment of its possessions.   The Court noted that the proceedings in issue [3] had lasted approximately nine years and nine months for four levels of jurisdiction. As such a period did not satisfy the reasonable time requirement in Article 6 § 1, the Court held unanimously that there had been a violation of that provision.   As to whether the proceedings had been fair, the Court noted that the applicant had had access to the civil and administrative courts but that none of them had determined the question whether it was entitled to restitution of the land that had been expropriated but not used. Since that situation amounted to a denial of justice, the Court held by six votes to one that there had been a violation of Article 6 § 1 on that account.   The Court further held that there had been no justification for upholding the decision not to return the land, having regard, firstly, to the contradictory outcomes of the two sets of proceedings instituted by the applicant and, secondly, to the fact that the land in question had still not been used for public-works projects. It considered that the fair balance between the requirements of the general interest and the need to protect individual rights had been upset. The Court accordingly held by six votes to one that there had been a violation of Article 1 of Protocol No. 1.   Under Article 41 (just satisfaction) of the Convention, the Court unanimously awarded the applicant EUR 3,000   for non-pecuniary damage resulting from the violation of its right to a hearing within a reasonable time and EUR 6,000   for costs and expenses. It also held by six votes to one that the question of Article 41 was not ready for decision as regards the violation of Article 6 concerning the right of access to a court and of Article 1 of Protocol No. 1, and the costs and expenses incurred in order to redress those violations. (The judgment is available only in French.)   Zuzčák and Zuzčáková v. Slovakia (no. 48814/99)   Violation of Article 6 § 1 The case was brought by Jozef Zuzčák and his wife Františka Zuzčáková (who died in October 2001), both Slovakian nationals, born in 1932 and 1941 respectively. Mr Zuzčák lives in Bratislava.   In 1989 the applicants bought a house in Bratislava from the State, but the purchase contract was later declared void. The applicants then unsuccessfully claimed financial compensation for damage allegedly sustained in connection with the fact that the contract was void and in connection with the protracted length of the proceedings concerning the validity of that contact. The applicants complained that the judges involved in the proceedings lacked impartiality. They also complained that the proceedings were excessively lengthy and unfair. They relied on Article 6 § 1 (right to a fair hearing within a reasonable time by an impartial tribunal).   The Court declared the complaint concerning the length of the proceedings concerning the validity of the purchase contract of 1989 (which lasted eight years and 19 days) admissible and the rest inadmissible. It held that there had been a violation of Article 6 § 1 and awarded the applicants EUR   3,200 for non-pecuniary damage. (The judgment is available only in English.)   Erkek v. Turkey (no. 28637/95)   Violation of Article 2 The applicant, Serdin Erkek, is a Turkish national who was born in 1966 and lives in Mersin (Turkey).   His brother, Namık Erkek, was arrested in December 1992 and taken into police custody on suspicion of being a member of the PKK (Workers’ Party of Kurdistan) – proscribed as a terrorist organisation under Turkish law – and extorting money from shopkeepers. He allegedly escaped shortly after his arrest, after leading the security forces to a place where it was said that a presumed accomplice might be found.   Disciplinary proceedings were instituted against 11 police officers for negligence in the performance of their duties, but no measures were taken against them. In addition, the applicant lodged a complaint against the police officers in whose custody his brother had been placed, alleging that he had been tortured to death. In view of the findings of the administrative inquiry conducted in respect of the officers and statements by presumed members of the PKK that Namık Erkek was involved in the armed struggle in the province of Muş, the public prosecutor discontinued the proceedings.   The applicant alleged that his brother had died after being tortured by the security forces while in their custody.   As regards the disappearance of Namık Erkek, the Court noted that the applicant’s allegations were not based on concrete and verifiable facts and were not decisively corroborated by any witness statements or other evidence. Since there was no evidence that the applicant’s brother had died after being tortured by the police, the Court held unanimously that there had been no violation of Article 2 on that account.   As to the nature of the investigations conducted in the present case, the Court noted that in the course of the criminal investigation, the public prosecutor had not heard evidence from the accused police officers and, in deciding to discontinue the proceedings, had merely relied on statements by presumed members of the PKK and on the disciplinary board’s decision. It observed in that connection that the discontinuation order had been based on an inquiry conducted by the police. The Court emphasised that, in the circumstances of the case, it was extremely important that the police officers should have been questioned by an independent body as they had been directly implicated in the disappearance of the applicant’s brother. The public prosecutor’s investigation had therefore been incomplete. The Court accordingly concluded that Turkey had failed to fulfil its obligation to conduct an adequate and effective investigation into the circumstances of the applicant’s brother’s disappearance and held unanimously that there had been a violation of Article 2 on that account.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 10,000   for non-pecuniary damage. (The judgment is available only in French.)       No violation of Article 2   No violation of Article 3 M.K. v. Turkey (no. 29298/95)   No violation of Article 14 The applicant, M.K., is a Turkish national, who was born in 1958 and lives in Istanbul.   His brother’s house was searched on 31 July 1994 in connection with an investigation into PKK activities. A warrant was issued in August 1994 for his brother’s arrest on a charge of membership of an illegal organisation and he was declared liable to trial in absentia . His body was found in Beykoz (Istanbul) in March 1995. The gendarmerie made inquiries at the scene and the public prosecutor’s office ordered an investigation.   Relying on Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment or punishment), 6 (right to a fair trial) and 14 (prohibition of discrimination) of the Convention, the applicant alleged that his brother had been the victim of an extrajudicial execution by the police.   As regards the death of his brother, the Court noted that the applicant’s allegations were not based on verifiable concrete evidence or conclusively backed up by witness statements or other proof. Moreover, in a statement to the public prosecutor, the applicant had said that he had no idea why his brother had been killed or of the circumstances in which he had met his death and did not have any suspects in mind. Since there was no evidence enabling it to conclude beyond all reasonable doubt that the applicant’s brother had been killed by the security forces or with their connivance, the Court held unanimously that there had been no violation of Article 2 on that account.   As regards the investigations, the Court found on the basis of the material in the investigation file and the information supplied by the Turkish Government that, even though it had not enabled the killers to be identified, the investigation had not been ineffective and it could not be said that the authorities had not actively investigated the circumstances in which the applicant’s brother had been killed. On the facts, the Court found that the investigation satisfied the requirements of Article 2. It accordingly held unanimously that there had been no violation of that provision on that account.   Since it had not been established that State agents had been implicated in the murder, the Court held unanimously that there had been no violation of Article 3. In view of its findings under Article 2, it decided that no separate examination of the complaints under Article 6 § 1 was necessary. Lastly, since the evidence adduced by the applicant did not prove his allegation that his brother had been killed for being a member of an illegal organisation, it held unanimously that there had been no violation of Article 14. (The judgment is available only in French.)   Temel v. Turkey (no. 37047/97)   Friendly settlement The applicant, Cevahir Temel, is a Turkish national who was born in 1959 and lives in Adana (Turkey).   On 13 January 1997, following a complaint, police officers went to her home to carry out a search. The parties disagree as to what ensued. The applicant said she was questioned about a member of the PKK and ill-treated by the security forces in that a police officer hit her in the back, forced to her to the ground and cut off her hair.   That evening, a doctor at Adana General Hospital noted that the applicant presented extensive sensitivity to the back and difficulty in moving her elbow and left wrist. She was diagnosed a few days later as suffering from physical trauma and post-traumatic neurosis.   The applicant relied on Articles 3 (prohibition of inhuman or degrading treatment), 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the Convention.   The case has been struck out of the list following a friendly settlement under the terms of which the applicant is to receive EUR 6,000 for damage and costs and expenses.   The Turkish Government also made the following statement: “The Government of the Republic of Turkey regret the occurrence of individual cases of ill-treatment by the authorities in the performance of their duties notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the recourse to ill-treatment constitutes, inter alia , a violation of Article 3 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the prohibition of such acts is respected in the future…   “The Government consider that the supervision by the Committee of Ministers of the Council of Europe of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co-operation in this process will continue to take place.” (The judgment is available only in French.)     Violation of Article 10   Violation of Article 6 § 1 Ayşenur Zarakolu and Others v. Turkey (nos. 26971/95 and 37933/97) The application was lodged by a Turkish national, Ayşenur Zarakolu, on her own behalf and on behalf of the publishing house Belge Uluslararası Yayıncılık , of which she was the owner at the material time. The applicant died in January 2002, but the Court gave her husband and two sons leave to continue the present proceedings.   The applicant was prosecuted for spreading separatist propaganda after publishing a book entitled “Our Ferhat, the anatomy of a murder” ( Bizim Ferhat, bir cinayetin anatomisi ) about the murder of the journalist Ferhat Tepe. An order was made under the urgent-applications procedure for copies of the book to be seized. The book denounced alleged human-rights violations in “Kurdistan” and was fiercely critical of the authorities, whom it accused of brutally repressing the Kurdish people’s fight for freedom.   In a judgment of 29 December 1995, Istanbul State Security Court sentenced the applicant to five-months’ imprisonment, which it commuted to a fine, and ordered confiscation of the book. It found that the book contained expressions that were intended to destroy the territorial integrity of the State: it called part of the territory “Kurdistan” and identified the insurrectionary movements in the region with a Kurdish nationalist struggle. The judgment was upheld by the Court of Cassation.   The applicant claimed that the seizure of the book and her criminal conviction had infringed Article 10 (freedom of expression) of the Convention. Relying on Article 6 § 1 (right to a fair trial), she also complained of the lack of independence and impartiality of the State Security Court that had tried and convicted her. She complained, lastly, under Article 13 (right to an effective remedy) and Article 1 of Protocol No. 1 (protection of property), of her inability to challenge the confiscation of the book, and submitted that the measure had infringed her right to the peaceful enjoyment of her possessions.   The Court found that the reasons given by the domestic courts could not be regarded as sufficient by themselves to justify the interference with the applicant’s right to freedom of expression. Although certain particularly acerbic passages of the book had portrayed the Turkish State and especially the army in a very negative light, thus lending hostile undertones to the narrative, they did not encourage people to use violence or resort to armed resistance or uprising; nor did they constitute hate speech. That, in the Court’s view, was the essential factor to be taken into consideration. The Court also found that the confiscation order and the applicant’s sentence were disproportionate to the aims pursued and, accordingly, not “necessary in a democratic society”. There had therefore been a violation of Article 10.   The Court reiterated that a civilian who had to answer to criminal charges in a state security court that included a military judge in its ranks had legitimate grounds for fearing that the tribunal was not independent and impartial. It accordingly held unanimously that there had been a violation of Article 6 § 1.   Having regard to its findings under Article 10, the Court did not consider any separate examination of the applicant’s allegations under Article 13 and Article 1 of Protocol No. 1 to be necessary.   Under Article 41 (just satisfaction) the Court awarded the applicant’s heirs EUR 5,000 for non-pecuniary damage and EUR 2,500 for costs and expenses. (The judgment is available only in French.)   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments.     [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] From 1 May 1993, when Poland recognised the right to individual petition. [3] The Court took into consideration only the period from 22 March 1989, when the Convention came into force in respect of San Marino.