CEDH · PRESS;GENERAL;ENG — 21 octobre 2004

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[1]   Woditschka and Wilfling v. Austria (application nos. 69756/01 and 6306/02) Violation Article 14 The applicants, Michael Woditschka and Wolfgang Wilfling, are Austrian nationals, born in 1979 and 1964 and living in Vienna and Traiskirchen (Austria) respectively. They were both convicted of having committed homosexual acts with an adolescent aged between 14 and 18.   The applicants complained of the maintenance in force of Article 209 of the Austrian Criminal Code, which criminalised homosexual acts of adult men with consenting adolescents between the ages of 14 and 18, and of their convictions under that provision. Relying on Article 8 (right to respect for private life), taken alone and in conjunction with Article 14 (prohibition of discrimination) of the European Convention on Human Rights, they alleged that their right to respect for their private life had been violated and that the contested provision was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable.   The European Court of Human Rights held, unanimously, that there had been a violation of Article 14 taken in conjunction with Article 8 and that it was not necessary to examine separately the complaint under Article 8. The Court awarded Michael Woditschka 15,000 euros (EUR) for non-pecuniary damage and EUR 10,888 for costs and expenses and Wolfgang Wilfling EUR 20,000 for non-pecuniary damage and EUR 15,478 for costs and expenses. (The judgment is available only in English.)     Crnojević v. Croatia (no. 71614/01)   Violation Article 6 § 1 Marinković v. Croatia (no. 9138/02)   Violation Article 6 § 1 Varićak v. Croatia (no. 78008/01)   Violation Article 6 § 1 Bubaš v. Croatia (no. 15308/02)   Friendly settlement Bulat v. Croatia (no. 10438/02)   Friendly settlement Grubišić v. Croatia (no.15112/02)   Friendly settlement Klajić v. Croatia (no.3745/02)   Friendly settlement Marković v. Croatia (no. 4469/02)   Friendly settlement   The applicants in the above cases are all Croatian nationals. In the case Bulat , a member of the Croatian Army allegedly shot at one of the applicants and killed his father and grandfather. In the other seven cases, the applicants’ houses (and also business premises in the case Varićak ) were either blown up or set ablaze by unknown perpetrators. The applicants all brought civil proceedings for compensation which were stayed under the 1996 or 1999 Civil Obligations (Amendments) Act.   They complained of a violation of Article 6 § 1 (right to a fair hearing). In the cases Bubaš, Grubišić, Marinković, Marković and Varićak the applicants further complained of a violation of Article   13 (right to an effective remedy).   In Crnojević, Marinković, and Varićak the Court held, unanimously, that there had been a violation of Article 6 § 1 and, in Marinković, and Varićak , that it was unnecessary to consider the complaints raised under Article 13. The applicants were respectively awarded EUR 4,000, EUR 8,000 and EUR 4,000 for non-pecuniary damage and EUR 2,000, EUR 500 and EUR 2,000 for costs and expenses.   The remaining cases have been struck out following friendly settlements in which EUR 6,000 is to be paid in respect of any pecuniary and non-pecuniary damage, costs and expenses in the cases Bubaš , Grubišić and Klajić and EUR 10,000 in the cases Marković and Bulat . (The judgments are available only in English.)   Binbay v. Turkey (no. 24922/94)   Friendly settlement The applicant, Yavuz Binbay, is a Turkish national, born in 1956 and living in Diyarbakır. He complained that, between March 1992 and February 1994, he was beaten up and intimidated, that his family were threatened, his shop   raided and car damaged by the Turkish authorities or with their connivance on account of his activities in the Human Rights Association and his Kurdish origin.   He relied on Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair hearing within a reasonable time), 8 (right to respect for private and family life), 10 (freedom of expression), 13 (right to an effective remedy) and   18 (limitation on use of restrictions on rights) of the Convention and Article 1 of Protocol No. 1 (protection of property).   The case has been struck out following a friendly settlement in which EUR 45,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses.   The Turkish Government also made the following declaration: “The Government regret the occurrence of individual cases of assaults against individuals, including at the time of and during their detention, as well as threats to their person and property, and the failure of the authorities to carry out effective investigations into allegations of this nature, as in the case of the applicant, Mr   Yavuz Binbay, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such failures.   “It is accepted that acts of serious assault, intimidation or harassment, including by means of arbitrary detention and damage to property, and the authorities’ failure to investigate these matters, as claimed in the instant case, constitute a violation of Articles   3, 5 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the rights guaranteed by these Articles – including the obligation to carry out effective investigations – are respected in the future. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of assaults in circumstances similar to those set out in the instant application as well as more effective investigations.”   (The judgment is available only in English.)                               Violation Article 10 Doğaner v. Turkey (no. 49283/99)   Violation Article 6 § 1 The applicant, Redep Doğaner, is a Turkish national who was born in 1960 and lives in Istanbul.   At the material time he was a member of HADEP (the People’s Democracy Party). In a speech at the party headquarters in September 1996 he was extremely critical of the way in which the security forces were combating separatist activities. He was prosecuted for disseminating separatist propaganda. In June 1998 the Ankara State Security Court found him guilty and sentenced him to ten months’ imprisonment and a fine. He appealed to the Court of Cassation but was unsuccessful.   The applicant submitted that his conviction had infringed Article 10 (freedom of expression) of the Convention. He also maintained under Article 6 (right to a fair hearing) that he had not been tried by an independent and impartial tribunal on account of the presence of a military judge among the members of the State Security Court, and complained of the unfairness of the proceedings in the Court of Cassation.   The Court considered that the reasons given by the Turkish courts could not be regarded in themselves as sufficient to justify the interference with the applicant’s right to freedom of expression. It observed, in particular, that although certain particularly acerbic passages of the speech painted an extremely negative picture of the Turkish State and thus gave the speech a hostile tone, they did not constitute an incitement to violence, armed resistance or an uprising and did not amount to hate speech; that, in the Court’s view, was the essential factor to be taken into consideration. The applicant’s conviction had therefore been disproportionate to the aims pursued and had accordingly not been “necessary in a democratic society”. The Court therefore held unanimously that there had been a violation of Article 10.   The Court further noted that civilians standing trial for national-security offences had legitimate reason to fear that a national security court which included a military judge among its members might not be independent and impartial. It therefore held unanimously that there had been a violation of Article 6 § 1 of the Convention. With regard to the complaint concerning 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 those subject to its jurisdiction. It accordingly considered that there was no need to examine that complaint.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 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.