CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 29 juillet 2004

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[1]     No violation of Article 8 Blečić v. Croatia (application no. 59532/00) No violation of Article 1 of Protocol No. 1 The applicant, Krstina Blečić, is a Croatian national, born in 1926 and living in Zadar, (Croatia).   In 1953, the applicant acquired a specially protected tenancy ( stanarsko pravo ) on a flat in Zadar.   On 26 July 1991, she went to stay with her daughter in Rome for the summer, locking her flat, with all the furniture and personal belongings in it, and asking a neighbour to pay the bills in her absence and to take care of the flat.   From 15 September 1991, the town of Zadar was exposed to constant shelling and the supply of electricity and water was disrupted for over 100 days. In October 1991 the applicant’s pension was stopped. She also lost the right to medical insurance. She therefore decided to stay in Rome.   In November 1991, a certain M.F., with his wife and two children, broke into the applicant’s flat in Zadar.   On 12 February 1992, Zadar Municipality ( Općina Zadar ) brought a civil action against the applicant for termination of her tenancy, on the ground that she had been absent from the flat for more than six months without justification.   The applicant claimed that she had not been able to return to Zadar given the war in Croatia and because she had no money, no medical insurance and was in poor health. When she had enquired about her flat and her possessions, M.F. had also threatened her over the telephone.   The Croatian courts ultimately terminated the applicant’s specially protected tenancy, finding that the reasons given by the applicant did not justify her absence.   The applicant alleged, in particular, that her rights to respect for her home and to the peaceful enjoyment of her possessions had been violated relying on Articles 8 (right to respect for home) and 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights.   The European Court of Human Rights was satisfied that the applicant did not intend to abandon the flat; she had made appropriate arrangements for its maintenance, with a view to her return. The flat in question could therefore reasonably be regarded as her home.   The termination of her tenancy was, however, in accordance with the law, being based on section 99(1) of the Housing Act. The legislation – designed to meet housing needs - was intended to promote the economic well-being of the country and the protection of the rights of others.   The Court observed that in the area of housing the margin of appreciation to the State is a wide one. Therefore, the judgment of the domestic authorities as to what is necessary in a democratic society will be respected unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued.   The Court noted that the Croatian courts had duly considered the factual and legal questions arising in the dispute and conducted a careful analysis of the arguments put forward by the applicant, giving detailed reasons for their decisions. The courts took account of the applicant’s age and health problems and were satisfied that her physical condition would have enabled her to travel. Furthermore, they took the view that the escalation of the armed conflict could not be seen as a justified reason for leaving Zadar, since it affected every citizen of the town equally.   The Croatian courts’ decisions were neither arbitrary nor unreasonable. The solution they reached in seeking a fair balance between the demands of the general interest of the community and the requirement of protecting the applicant’s right to respect for her home was not manifestly disproportionate to the legitimate aim pursued.   The Court also found that the applicant had been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests.   The Court therefore held, unanimously, that there had been no violation of Article 8 of the Convention.   Concerning Article 1 of Protocol No. 1, the Court did not find it necessary to decide whether or not a specially protected tenancy constituted property or a possession. Even assuming that the termination of the applicant’s tenancy involved a right to property, the Court considered that the interference in question was neither an expropriation nor a measure to control the use of property.   The Court recalled that it had already found in its consideration of the complaint raised under Article 8 that the termination of the applicant’s tenancy pursued a legitimate social policy aim and struck a fair balance between the interests involved.   The termination of the tenancy and the resultant loss of an eventual opportunity to purchase the flat in question did not therefore amount to a violation of Article 1 of Protocol No. 1 to the Convention. The Court, therefore, held, unanimously, that there had been no violation of Article 1 of Protocol No. 1. (The judgment is available only in English.)     Violation of Article 5 § 3 Cevizovic v. Germany (no. 49746/99)   Violation of Article 6 § 1 The applicant, Zvonko Čevizović, is a Croatian national, born in 1966. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Rogaška Slatina, Slovenia.   The applicant was arrested on 17 June 1996 and placed in detention on remand until 20 March 2001, when he was convicted of attempted murder, aggravated robbery, grievous physical injury and unauthorised carrying of weapons. His conviction became final on 4 April 2001 .   The applicant alleged that the length of his detention on remand (four years, nine months and three days) and the length of the criminal proceedings against him (four years, nine months and 19 days) exceeded a reasonable time. He also complained that his continued detention had been disproportionate. He relied on Articles   5 §§   1 and 3 (right to liberty and security) and 6 §   1 (right to a fair trial within a reasonable time).   The Court held unanimously that there had been a violation of Articles   5 §   3 and 6 §   1, concerning the length of the applicant’s detention and the criminal proceedings against him, and that it was not necessary to consider separately the applicant’s complaint under Article 5   § 1, as there had been relevant and sufficient grounds for his continued detention. The Court further held, unanimously, that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR   1,500 in respect of costs and expenses, less EUR   630. (The judgment is available only in English.)     Violation of Article 6 § 1 O’Reilly and Others v. Ireland (no. 54725/00)   Violation of Article 13 The eight applicants, Desmond O’Reilly, James McGurren, Carol   Moore, William Moore, Kevin Ludlow, Patrick Leddy, Patrick Brady and John Wilson are Irish nationals. They all live in Belturbet (Ireland) and have homes, farms or business premises on a public road in Belturbet.   On 21 July 1994, the applicants applied for leave to take judicial review proceedings to compel the local council to repair the road and for a declaration that the council had failed in its statutory duty to maintain the road in good repair and condition together with damages for breach of statutory duty and costs. Leave was granted on 25 July 1994.   On 6 December 1996, the High Court ordered the council to repair the road. The court found that the council had a statutory obligation to repair the road and keep it in good condition and that the council’s lack of resources could not constitute a defence. An order for costs was made in the applicants’ favour. The council appealed.   In 1997, the council started repair work on the relevant road, which was completed by the end of 1998.   On 17 June 1999, the Supreme Court noted that the council did not have the financial resources necessary to repair the estimated 600 roads in poor condition in the area and considered that the courts should not make orders where it was acknowledged that the public authority did not have the resources to comply with the order and where the implementation of the order depended on the co-operation of other Government bodies.   The case was adjourned to 22 June 1999.   The applicants complained about the length of the proceedings (which lasted some four years and 11 months), relying 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 applicants EUR   1,000 each in respect of non-pecuniary damage and a total of EUR   400 in respect of legal costs and expenses. (The judgment is available only in English.)     Violations of Article 6 § 1 Scordino v. Italy (no. 1) (no. 36813/97)   Violation of Article 1 of Protocol No. 1 The case concerns an application (no. 36813/97) brought by four Italian nationals, Giovanni, Elena, Maria and Giuliana Scordino who were born in 1959, 1949, 1951 and 1953 respectively and live in Reggio Calabria (Italy).   The applicants inherited 1,784   m 2 of land in Reggio Calabria which was subject to an expropriation permit for houses to be built there. A cooperative society called Edilizia Aquila, which was chosen by the municipality to undertake the building works, was authorised by the authorities to occupy the land in March 1981. On 21 March 1983 the Region issued a decree expropriating the land. In August 1984 the former owner of the expropriated land requested the municipality to determine the final amount of expropriation compensation. This was determined by a decree of 6 October 1989 in the sum of 88,414,940   Italian lire (ITL), which was ITL   50,000 per m 2 .   The owner of the expropriated land challenged that amount of compensation on 25 May 1990 in proceedings against the municipality and the cooperative in the Reggio Calabria Court of Appeal. He submitted that the compensation was ridiculously low; that no compensation had been determined for the period of occupation prior to the expropriation; and that, on account of the building works, 1,500   m 2 of extra land which had become unusable should also be deemed to have been expropriated.   The owner of the expropriated land died on 30 November 1992, whereupon the applicants took over the proceedings. Following the entry into force of Law no. 359 of 1992, the Court of Appeal instructed a new expert to determine the expropriation compensation in accordance with the criteria introduced by that new Law. In a judgment of 17 July 1996, it ordered the municipality and the cooperative to pay the applicants compensation of ITL   148,041,540 (which was ITL 82,890 per m 2 ), ITL 91,774,043 for the land which had not been expropriated but had become unusable, and compensation for the period of occupation prior to expropriation. On an appeal by the cooperative, the Court of Cassation gave judgment on 3   August 1998, deposited with the Registry on 7 December 1998, acknowledging that the cooperative was not formally a party to the expropriation despite the fact that it benefited from it and upholding the remainder of the Court of Appeal’s judgment.   Relying on the so-called Pinto Law, the applicants sought compensation in the Reggio Calabria Court of Appeal for the delays in the proceedings. They were awarded a total of EUR   2,450 for non-pecuniary damage only and the Court of Appeal deducted court fees from that amount by way of set-off.   Relying on Article 6 § 1 of the Convention (right to a fair trial within a reasonable time), the applicants complained of the length and the unfairness of the compensation proceedings following the expropriation of their land. They also complained, under Article 1 of Protocol No. 1 (protection of property), of an infringement of their right to peaceful enjoyment of their possessions on account of the time taken to pay them the expropriation compensation and the effect of the entry into force during the proceedings of Law no. 359 of 1992.   The Court noted that in its admissibility decision of 27 March 2003 it had found that the award by the Reggio Calabria Court of Appeal of the sum of EUR 2,450 as compensation for non-pecuniary damage under the Pinto Law did not constitute proper and adequate redress for the breach complained of by the applicants. It also noted that it had found that a practice contrary to the Convention existed in Italy through the repetition of breaches of the “reasonable-time” requirement. In the event of the Court finding a breach, the repetitive nature of the breach constituted an aggravating factor.   The proceedings lasted approximately eight and a half years for two levels of jurisdiction, a period which the Court considered unreasonable and an example of the aforementioned practice. Accordingly, the Court held unanimously that there had been a violation of Article 6   § 1.   As to the applicants’ complaints that the legislature had encroached upon the jurisdiction of the courts, the Court found that, even though the relevant proceedings had not been declared null and void by Law no. 359 of 1992, that statute had influenced the judicial resolution of litigation to which the State was a party. Section 5 bis of that Act expressly included pending proceedings within its scope and irreversibly defined with retrospective effect the issues to be decided by the judiciary. As a result of the application of that provision the applicants had been deprived of a substantial part of the compensation to which they could have laid claim.   The fact that the national courts relied on that provision showed that the legislature had interfered with the functioning of the judiciary with a view to influencing the outcome of the dispute. Consequently, the Court held unanimously that there had been a violation of Article   6 § 1 on that account.   As to the amount of compensation awarded to the applicants, the Court found that it was not reasonably proportionate to the value of the expropriated property. Thus, the “fair balance” required between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights had been upset. Consequently, the Court found that there had been a violation of Article 1 of Protocol No. 1. Having examined the applicants’ complaint concerning section 5 bis of Law no. 359 of 1992 under Article 6 § 1, it does not consider it necessary to examine it under Article 1 of Protocol No. 1.   Under Article 41 of the Convention (just satisfaction), the Court unanimously decided to award the applicants EUR 410,000 for pecuniary damage. It held by six votes to one that the questions of non-pecuniary damage for the violations and of costs and expenses incurred in the proceedings in the domestic courts and the Court were not ready for determination and reserved them. (The judgment is available only in French.)   San Leonard Band Club v. Malta (no. 77562/01)   Violation of Article 6 § 1 The applicant, San   Leonard Band Club, is a Maltese private company, which occupied a tenement in the town of Hal Kirkop (Malta).   The owners of the tenement occupied by the applicant company brought civil proceedings to regain possession of the premises. The Court of Appeal found in the owners favour in a judgment of 30 December 1993. The applicant company then applied, unsuccessfully, for a new trial before the Court of Appeal, alleging that there had been a misinterpretation of the law. The applicant company’s constitutional complaint that the Court of Appeal which decided on the admissibility of its claim for retrial was not an impartial tribunal also failed.   The company complained, under Article 6 § 1 (right to a fair hearing before an independent and impartial tribunal) that its request for retrial was not heard by an impartial tribunal, because the same three judges who had heard the merits of the case and adopted the judgment of 30 December 1993 were on the bench dealing with the retrial request.   The Court observed that the judges dealing with the retrial request were required to determine whether their own application of the law had been adequate and sufficient. Those circumstances were sufficient for the Court to hold that the applicant’s fears as to the lack of impartiality of the Court of Appeal were objectively justified. The Court therefore held, unanimously, that there had been a violation of Article 6 § 1. (The judgment is available only in English.)   Mora do Vale and Others v. Portugal (no. 53468/99) Violation of Article 1 of Protocol No. 1 The applicants are 27 Portuguese nationals who were born between 1914 and 1978 and live in Portugal and Switzerland. Two of the applicants, Jorge Manuel Mora do Vale and Maria Lucília Nepomuceno Paulino Gomes, died in 2000. The Court gave leave to Mr Mora do Val’s heirs to continue the proceedings. It decided to strike Ms Nepomuceno Paulino Gomes’s application out of the list, as none of her heirs had manifested an intention to continue the proceedings.   The applicants are former owners, or the heirs of former owners, of approximately 2,405   hectares of land known as Herdade de S. Bento. Various buildings, including a villa, had been built on the land, which also includes farming land and woodlands. The land was nationalised in error in 1975 under an agrarian reform and returned to the owners in 1989. They sought reparation for the unlawful occupation of their land.   The Minister of Agriculture and Secretary of State for the Treasury issued ministerial decrees determining the final amount of compensation payable to the applicants in the sum of 116,312,101 portuguese escudos, the equivalent of EUR   580,162. That sum was paid to the owners between September 2000 and March 2001. The applicants appealed against that decision to the Supreme Administrative Court and their appeal is still pending. Some of the applicants brought an action in damages in the civil courts. Those proceedings are pending in the Supreme Court.   The applicants alleged that the determination and late payment of the compensation following the nationalisation of their land had violated their right to the peaceful enjoyment of their possessions, in breach of Article 1 of Protocol No. 1 to the Convention (protection of property). They complained under Article 13 of the Convention (right to an effective remedy) that they had no means under domestic law of compelling the authorities to take a decision.   The Court refused a request by the heirs of Ms Nepomuceno Paulino Gomes to restore her application to the list.   It noted that Portuguese law had recognised that the applicants were entitled to compensation for the deprivation of their property. The failure to determine and later to pay that compensation constituted interference with the applicants’ rights to the peaceful enjoyment of their possessions. The interference pursued a legitimate aim. The Court noted that the applicants did not receive compensation until almost 16 years after their property was nationalised and were still awaiting the decision of the Supreme Administrative Court which would finally determine the amount of compensation payable. The delays were indisputably attributable to the State and could not be justified by the complexity of the authorities’ activity in that sphere or the number of people who were entitled to compensation. Further, although the applicants had received payments which included interest, it was common ground that monetary depreciation in Portugal during the relevant period had been considerably greater than the rates of interest paid.   The uncertainty still facing the applicants, coupled with the lack of any effective domestic remedy capable of alleviating the situation, led the Court to conclude that the applicants had had to bear an individual and excessive burden which had upset the fair balance that had to be struck between the requirements of the general interest and the protection of the right to the peaceful enjoyment of possessions. Consequently, it held unanimously that there had been a violation of Article 1 of Protocol No. 1. In the light of that conclusion, it considered that no separate examination of the complaint under Article 13 was necessary.   Under Article 41 (just satisfaction), the Court decided to award the applicants jointly EUR   8,000 for costs and expenses. It found that the questions of pecuniary and non-pecuniary damage were not ready for determination and reserved them. (The judgment is available only in French.)   Vahit and Ilhan Caloglu v. Turkey (no. 55812/00)   Violation of Article 6 § 1 The applicants, Vahit and İlhan Çaloğlu, are Turkish nationals who were born in 1970 and 1972 respectively.   On 14 February 1996 the Izmir National Security Court found the applicants guilty of being members of an illegal organisation, namely the DHKP-C ( Revolutionary People’s Liberation Party/Front ) and sentenced Vahit Çaloğlu to 19 years’ imprisonment and İlhan Çaloğlu to 18   years and 20 days’ imprisonment.   Relying on Article 6 § 1 of the Convention, the applicants complained that they had not had a fair trial on account of the presence of a military judge on the bench of the national security court that had convicted them.   The Court reiterated that civilians standing trial for offences under the Criminal Code had legitimate reason to fear that a national security court which included a military judge among its members might not be independent and impartial. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court held unanimously that the present judgment constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It reiterated that in cases in which it had found that applicants had been convicted by a court that was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress would in principle be for them to be retried by an independent and impartial court at an early date. The Court awarded the applicants EUR   2,000 jointly for costs and expenses. (The judgment is available only in French.)     Violation of Article 2   Violation of Article 13   No violation of Article 3   No violation of Article 8   No violation of Article 14   No violation of Article 18 Mehmet Sirin Yilmaz v. Turkey (no. 35875/97) No violation of Article 1 of Protocol No. 1 The applicant, Mehmet Şirin Yılmaz, is a Turkish national, born in 1964 and living in Istanbul. He is the widower of the deceased Sariye Yılmaz. He introduced the application on his own behalf and on behalf of his family and deceased spouse. At the time of the events at issue the applicant was living in the village of Bayırlı (Karıncak) in the Lice district of south-east Turkey.   The applicant claimed that, at the beginning of October 1996, soldiers warned Bayırlı villagers that, if they failed to evacuate the village by 15 October, their houses would be burned down. On 7 October 1996 an armed clash broke out between members of the PKK ( Workers’ Party of Kurdistan ), proscribed as a terrorist organisation under Turkish law and the security forces stationed near the village. When the clash was over, soldiers fired artillery shells towards the village. An artillery shell landed six to seven metres from the applicant’s house and a piece of shrapnel struck his wife in the abdomen. She died on the way to the local health clinic.   The Turkish Government claimed that, on 7 October 1996 a group of terrorists attacked the security forces which were stationed near Bayırlı. At around 4.30 a.m. terrorists tried to escape through the village, firing randomly at the houses and wounding the applicant’s wife.   The applicant alleged that his wife was killed during an artillery attack by the security forces on their village. He further complained of the forced evacuation of his village. He relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment or punishment), 6 (right to a fair hearing), 8 (right to respect for family life), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 18 (limitation on use of restrictions on rights) of the Convention and Article 1 of Protocol No. 1 (protection of property) to the Convention.   The Court found that there was an insufficient factual and evidentiary basis on which to conclude that the applicant’s wife was, beyond reasonable doubt, intentionally or recklessly killed by the security forces. It therefore held, by five votes to two, that there had been no violation of Article 2 concerning the applicant’s allegation that his wife was killed in circumstances engaging the responsibility of agents of the State.   The Court held, unanimously, however, that there had been a violation of Article   2 on account of the failure of the Turkish authorities to conduct an adequate and effective investigation into the circumstances surrounding the death of the applicant’s wife.   The Court also held, unanimously, that it did not have a sufficient factual basis on which to reach a conclusion that there had been a violation of Articles 3 and 8 of the Convention or of Article 1 of Protocol No. 1.     Moreover, in the light of the evidence submitted to it, the Court considered the applicant’s allegations concerning Articles 14 and 18 unsubstantiated.   Accordingly, the Court held, unanimously, that there had been no violation of Articles   8 or 14 or of Article 1 of Protocol No.   1 and, by six votes to one, that there had been no violation of Article   3.   Noting that the Turkish authorities had an obligation to carry out an effective investigation into the circumstances of the killing of the applicant’s wife, but that no effective criminal investigation could be considered to have been conducted in accordance with the requirements of Article 13, the Court found that the applicant had been denied an effective remedy in respect of the death of his wife and thereby access to any other available remedies at his disposal, including a claim for compensation. The Court therefore held, unanimously, that there had been a violation of Article   13.   The Court further held, unanimously, that it was not necessary to consider the applicant’s complaint under Article 2, regarding the alleged lack of protection in domestic law of the right to life, or Article 6 § 1.   The Court awarded EUR   35,000 to the applicant together with his seven children in respect of non-pecuniary damage and EUR   10,000 in respect of costs and expenses. (The judgment is available only in English.)     Violation of Article 10 Okutan v. Turkey (no. 43995/98)   Violation of Article 6 § 1 The applicant, Kemal Okutan, is a Turkish national who was born in 1957 and lives in Ankara.   As Vice-Secretary General of the political party HEP (People's Labour Party), the applicant took part in three meetings during which he made political speeches strongly criticising the manner in which the security forces were conducting their fight against acts of terrorism in south-east Turkey. Two of the speeches were made at the party’s congresses in December 1991 and September 1992 and the third in March 1992 at a meeting of the Association of Contemporary Lawyers. The applicant was charged under section 8(1) of the Prevention of Terrorism Act of 1991 with disseminating propaganda undermining the integrity of the State. In a judgment of 7 November 1996 the applicant was sentenced by the Ankara National Security Court to three years’ imprisonment and to a fine. He unsuccessfully appealed to the Court of Cassation.   Relying on Article 10 of the Convention, the applicant complained that his criminal conviction had infringed his right to freedom of expression. He complained, under Article 6 §§ 1 and 3(b) of the Convention, that he had not had a fair trial on account of the presence of a military judge on the bench of the national security court that had convicted him and that he had not been notified of the opinion of the Principal Public Prosecutor attached to the Court of Cassation.   The Court found that the grounds on which the domestic courts had based their decision could not be considered as sufficient in themselves to justify the interference with the applicant’s right to freedom of expression. The applicant had expressed himself in his capacity as a politician, a player on the Turkish political scene. His words had not incited anyone to violence, armed resistance or an uprising; nor was it hate speech, which, in the Court’s view, was the essential factor to be taken into consideration. It considered that the applicant’s conviction was 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 civilians standing trial for offences under the Criminal Code had legitimate reason to fear that a national security court which included a military judge among its members might not be independent and impartial. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 of the Convention. With regard to the other complaint based on the unfairness of the proceedings, the Court reiterated that a court whose lack of independence and impartiality had been established could not under any circumstances guarantee a fair trial to persons subject to its jurisdiction. It accordingly held that there was no need to examine that complaint.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant EUR   6,000 for non-pecuniary damage and EUR   2,500 for costs and expenses. It reiterated that in cases in which it had found that applicants had been convicted by a court that was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress would in principle be for them to be retried by an independent and impartial court at an early date. (The judgment is available only in French.)     Violation of Article 5 § 3 Süleyman Yıldırım v. Turkey (no. 40518/98)   Violation of Article 6 The applicant, Süleyman Yıldırım, is a Turkish national, who was born in 1968. He is currently in Batman Prison (Turkey).   In September 1997 the applicant was arrested on suspicion of being a member of an illegal organisation, namely the PKK, proscribed as a terrorist organisation under Turkish law, and taken into police custody. He was prosecuted under Article 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act. On 2   November 2000 the Diyarbakır National Security Court sentenced him to the death penalty. Taking into account the applicant’s good conduct during the trial, the death penalty was commuted to a life sentence. He unsuccessfully appealed to the Court of Cassation.   Relying on Article 5 § 3 (right to liberty and security), the applicant complained that he had not been brought promptly before a judge. He also complained, under Article 6 § 1, that he had not had a fair trial owing to the presence of a military judge on the bench of the national security court.   The applicant was held in police custody for ten days. The Court could not accept that it had been necessary to detain him for that length of time without bringing him before a judge, and accordingly concluded unanimously that there had been a breach of Article 5 § 3. The Court reiterated that civilians standing trial for offences under the Criminal Code had legitimate reason to fear that a national security court which included a military judge among its members might not be independent and impartial. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 of the Convention   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant EUR   3,500 for non-pecuniary damage and EUR   840 for costs and expenses.   (The judgment is available only in English.)   Violation of Article 10 Iprahim Ülger v. Turkey (no. 57250/00)   Violation of Article 6 § 1 The applicant, Iprahim Ülger, is a Turkish national who was born in 1963. He now lives in France where he has acquired political refugee status.   At the material time he was living in Izmir and was a member of the executive committee of the People’s Democracy Party ( HADEP – Halkın Demokrasi Partisi ). In May 1998, at the party’s congress, he made a speech in his capacity as member of the steering committee, strongly criticising the manner in which the security forces were conducting their fight against separatist activities. On account of that speech the applicant was charged with disseminating propaganda undermining the territorial integrity of the State and the indivisible unity of the Turkish nation. In a judgment of 10 December 1998 the Izmir National Security Court found him guilty of the offence as charged and sentenced him to 10 months’ imprisonment and to a fine. He unsuccessfully appealed to the Court of Cassation.   The applicant complained, under Article 6 §§ 1 and 3 (b) de la Convention, that he had not had a fair trial owing to the presence of a military judge on the bench of the national security court that had convicted him and that he had not been notified of the opinion of the Principal Public Prosecutor attached to the Court of Cassation. Relying on Article 10 of the Convention, he submitted that his criminal conviction had infringed his right to freedom of expression.   The Court reiterated that civilians standing trial for offences under the Criminal Code had legitimate reason to fear that a national security court which included a military judge among its members might not be independent and impartial. Accordingly, it concluded unanimously that there had been a violation of Article 6 § 1 of the Convention. With regard to the other complaint based on the unfairness of the proceedings, the Court reiterated that a court whose lack of independence and impartiality had been established could not under any circumstances guarantee a fair trial to persons subject to its jurisdiction. It accordingly held that there was no need to examine that complaint.   The Court found that the grounds on which the domestic courts had based their decision could not be considered as sufficient in themselves to justify the interference with the applicant’s right to freedom of expression. Although certain particularly acerbic passages of the speech had painted an extremely negative picture of the Government’s anti-terrorist policy and had given the speech a hostile tone, it had not amounted to an incitement to violence, armed resistance or an uprising; nor had it been hate speech, which, in the Court’s view, was the essential factor to be taken into consideration. The Court considered that the applicant’s conviction was disproportionate to the aims pursued and accordingly not “necessary in a democratic society”. There had therefore been a violation of Article 10. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant EUR   4,000 for non-pecuniary damage and EUR   1,500 for costs and expenses. It reiterated that in cases in which it had found that applicants had been convicted by a court that was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress would in principle be for them to be retried by an independent and impartial court at an early date. (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.