CEDH · PRESS;GENERAL;ENG — 30 novembre 2004

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[1]   Karasová v. Czech Republic (application no. 71545/01)   Violation of Article 6 § 1 The applicant, Eva Karasová, is a Czech national who was born in 1938 and lives in Prague.   On 24 September 1991 she brought an action for the return of immovable property that had been confiscated from her family by the Nazis and subsequently nationalised by the State. The Czech courts upheld her claim in part and ordered the State-owned company in possession of the property to return half of it to her. The proceedings ended on 12 March 2001 when the Constitutional Court dismissed an appeal by the applicant.   Relying on Article 6 § 1 of the European Convention on Human Rights (right to a fair hearing within a reasonable time), the applicant complained of the length and unfairness of the proceedings. She further complained of an infringement of her right to the peaceful enjoyment of her possessions, contrary to Article 1 of Protocol No. 1 to the Convention (protection of property).   The Court declared the application admissible only in so far as it concerned the length of the proceedings. It could only take into account the period since 18 March 1992, when the Convention entered into force in respect of the Czech Republic. Since the proceedings had ended on 12 March 2001, they had taken almost nine years for four levels of jurisdiction. Having regard to the circumstances of the case, the Court found that the length of the proceedings was unreasonable, contrary to Article 6 § 1 of the Convention. Consequently, it held unanimously that there had been a violation of the Convention on that account and awarded Mrs Karasová EUR 3,000 for non-pecuniary damage. (The judgment exists only in French.)     Vrána v. Czech Republic (no. 70846/01)   Violation of Article 6 § 1 Tomáš Vrána is a Czech national who was born in 1971 and lives in Čelákovice (Czech Republic).   On 23 April 1996 he was charged with armed robbery. He was remanded in custody on 26   April 1996 and remained in custody until April 1998. The criminal proceedings are still pending in the Czech courts.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), he complained of the length of the proceedings (eight years and six months for one level of jurisdiction).   Having regard to the circumstances of the case, the Court found that the length of the proceedings was unreasonable, contrary to Article 6 § 1. Consequently, it held unanimously that there had been a violation of the Convention on that account and awarded Mr Vrána EUR 8,000 for non-pecuniary damage and EUR 790 for costs and expenses. (The judgment exists only in French.)   Fenech v. France (no. 71445/01)   Violations of Article 6 § 1 The applicant, Michelle Fenech, is a French national who was born in 1957 and lives in La Seyne sur Mer (France).   In October 1996, the applicant lodged a criminal complaint on behalf of her minor daughter. The accused was acquitted at the trial and the applicant’s request to be joined to the proceedings as a civil party was declared inadmissible. Her appeals to the Court of Appeal and Court of Cassation were dismissed.   The applicant complained that the proceedings in the Criminal Division of the Court of Cassation were unfair on account of the failure to provide her with a copy of the reporting judge’s report and of the presence of the Advocate-General during the court’s deliberations. She relied on Article 6 § 1 (right to a fair hearing).   The Court reiterated that a failure to provide an appellant or his or her counsel with a copy of the reporting judge’s report before the hearing when it had been made available to the Advocate-General created an imbalance that was incompatible with the requirements of a fair hearing. It further found that the mere presence of the Advocate-General during the deliberations of the Criminal Division was incompatible with Article 6 § 1. Consequently, it found that there had been a violation of that provision on both points.   Under Article 41 (just satisfaction), the Court awarded Ms Fenech 2,652.80 euros (EUR) for costs and expenses. (The judgment is available only in French.)       Violations of Article 6 § 1 Vaney v. France (no. 53946/00)   The applicant, Henry Vaney, is a French national who was born in 1945 and lives in Chexbres (Switzerland).   On 17 December 1984 he was charged with misappropriating company assets in connection with an investigation into suspected embezzlement. The proceedings were discontinued on 14   November 1988, on the grounds that prosecution of the offence was statute-barred. On 22   March 1989 the applicant brought proceedings against the Government Law Officer for compensation for the losses he had sustained as a result of the investigating judge’s actions. His claim for compensation was turned down by the Court of Cassation on 10 June 1999. The applicant complained of the unreasonable length of the criminal proceedings (approximately three years and eleven months) and of the proceedings against the State (more than ten years and two months). He relied on Article 6 § 1(right to a fair hearing within a reasonable time).   Having regard to the circumstances of the case, the Court found that the length of both sets of proceedings had been unreasonable, contrary to Article 6 § 1. Consequently, it held unanimously that there had been a violation of the Convention on that account and awarded Mr Vaney EUR 1 for non-pecuniary damage and EUR 5,000 for costs and expenses. (The judgment is available only in French.)     Violation Article 5 §§ 3 & 4   Violation Article 6 § 1   Violation Article 13   Violation Article 8 Violation Article 34 Klyakhin v. Russia (no. 46082/99)   The applicant, Konstantin Vladimirovich Klyakhin, is a Russian national, born in 1966 and living in Armavir, Krasnodar Region (Russia).   In 26   August 1997 he was detained on suspicion of theft. He was convicted of attempted robbery on 9 February 2001 and sentenced to four year’s imprisonment.   He complained, in particular, about the length of his pre-trial detention, that there was no judicial review of his detention pending trial, that the criminal charge against him was not determined within a reasonable time and that the prison authorities monitored and hindered his correspondence with the European Court of Human Rights. He relied on Article 5   §§ 3 & 4 (right to liberty and security), Article 6   §   1 (right to a fair hearing), Article   8 (right to respect for correspondence), Article 13 (right to an effective remedy) and Article   34 (individual applications).   The Court noted that the applicant had been detained for about three years and two months, of which two years five months and ten days could be taken into consideration by the Court [2] . As the Russian authorities had failed to justify the prolongation of the applicant’s detention, the Court held, unanimously, that there had been a violation of Article 5 § 3.   Concerning the applicant’s complaint under Article 5 § 4, the Court observed that his submissions contained facts capable of casting doubt on the reasonableness of his detention. By not taking them into account, the domestic courts had failed to provide a judicial review of the scope and nature required by Article 5   §   4. His other complaints, specifically addressing the issue of his continued pre-trial detention, remained unanswered. The Court therefore held, unanimously, that there had been a violation of Article 5   §   4.   The Court observed that the overall length of the proceedings – from 29   August 1997 to 9   February 2001, excluding the period between 20   October and 2   December 1999 when no proceedings were pending – lasted about three years and four months, of which it could take into consideration two years and seven-and-a-half months. The Court therefore held, unanimously, that there had been a violation of Article 6   § 1. There had also, the Court held unanimously, been a violation of Article   13, in that the applicant had no domestic remedy whereby he could enforce his right to a hearing within a reasonable time.   Concerning Article 8, the Court noted that it was not disputed that the applicant’s correspondence with the Court was routinely opened and censored. Russian law, as it stood at the material time, allowed for censorship of a prisoner’s correspondence, except with certain supervisory bodies, not including the European Court of Human Rights. The Russian Government had not submitted any reasons which could justify such control of correspondence with the Court, the confidentiality of which had to be respected. Finding that the interference complained of was not necessary in a democratic society, the Court held, unanimously, that there had been a violation of Article   8. However, there had been no violation of Article 13 combined with Article 8.   Concerning Article 34, the Court noted that one of the applicant’s letters never reached the Court. Another, dated 8 June 2000, bore a postmark of 20 October 2000 and contained none of the documents listed by the applicant. The prison correspondence log referred only to three letters received by the applicant from the Court between 1998 and 2000, whereas the Court   sent at least ten. In addition, the Court noted that the applicant’s position was particularly vulnerable as he had been detained and was dependent in his correspondence with the Court –and with the rest of the outside world – on the prison administration. Also, he had no representative in the proceedings before the Court before 14 October 2003. The Court therefore concluded, unanimously, that there had been a violation of Article 34.   The Court awarded the applicant EUR 5,000 for non-pecuniary damage and EUR 800 for costs and expenses. (The judgment is available only in English.)   No violation Article 2 (loss of life) Violation Article 2 (inadequate investigation) No violation Article 3 Violation Article 13 A.K. and V.K. v. Turkey (no. 38418/97)   The applicants, Mrs A.K and Mr V.K., are Turkish nationals who were born in 1937 and 1977 respectively and live in Varto (Turkey).   On 20 November 1994, B.K. (the first applicant’s son and the second applicant’s brother) was arrested on suspicion of aiding and abetting the PKK and held at Varto Security Headquarters. On 22 November an order was made authorising B.K.’s continued detention for a further seven days and a doctor certified that he had examined him and found no traces of assault on his body.   On the morning of 28 November, B.K. was found dead in his cell, hanging from the heating pipes by the cord of his tracksuit. The public prosecutor was informed and started an investigation. He attended the scene and carried out a detailed external examination of the body with a doctor from which it appeared that the cause of death was asphyxia by hanging.   Considering that the cause of death had been established beyond doubt, the public prosecutor decided that to dispense with a formal autopsy. However, in 1995 he made an order for the body to be exhumed for various tests to be performed. A report drawn up in March 1996 by a specialist from the Institute of Forensic Medicine indicated that the examinations necessary to determine the cause of death were not carried out as there had been no formal autopsy and the judicial process was incomplete. The report also concluded that the superficial traumatic changes to the body were consistent with hanging and that there was no conclusive medical proof that the deceased had been forcibly hanged by third parties or killed prior to being hanged.   In May 1996 Mrs A.K lodged a criminal complaint against the police officers who had been on duty while her son was in custody. The public prosecutor decided to take no further action either on the investigation he had started himself or on Mrs A.K’s complaint.   The applicants maintained that B.K. had died as a result of torture inflicted on him by police officers while he was in their custody and alleged a violation of Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading treatment). Relying on Article 6 (right of access to a court), they further complained of the inadequacy of the investigation into his death. In addition, relying on Article 13 (right to an effective remedy) taken together with Article 2, the applicants complained of the lack of an effective mechanism to which they could have had recourse in order to establish the circumstances of B.K.’s death.   With regard to B.K.’s death, the Court found that, in the circumstances of the case, a finding that he had died as a result of torture by the security forces would be based more on conjecture than on reliable evidence. There was no evidence before it to support such a finding.   Furthermore, any deprivation of physical liberty was, by its very nature, apt to prove a psychological ordeal for prisoners and consequently entailed a risk of suicide. The criminal justice system implemented measures to avoid such risks to prisoners’ lives. The Court was not persuaded that the measures taken by the police officers to search and keep watch over B.K. could be impugned under Article 2, as his mental state had appeared normal. It had been difficult to foresee that he would kill himself in that way and statements from prisoners in adjoining cells suggested that the suicide had taken place in total silence.   Consequently, the Court held that there had been no violation of Article 2 on account of B.K.’s death.   Conversely, the Court noted that no autopsy had been carried out on the body and that a subsequent exhumation did not enable that omission to be remedied, owing to deterioration of the body tissues. It reiterated that it was vital for a formal autopsy to be performed in court cases. That statutory requirement had not been complied with in the case before it. The failure to conduct a formal autopsy meant that the State had not discharged its obligation to conduct an adequate and effective investigation into the circumstances of B.K.’s death. The Court consequently held unanimously that there had been a violation of Article 2 on that account.   As regards the complaint under Article 3, the Court saw no reason to doubt the domestic authorities’ findings regarding the origin of the injuries found on B.K.’s body, namely that they were consistent with hanging. Accordingly, it found that there was nothing in the material before it to establish beyond reasonable doubt that B.K. was subjected to treatment that was contrary to Article 3 and held unanimously that there had been no violation of that provision.   The Court decided to examine the complaint that the investigation was inadequate solely under Article 13. Having found that the judicial investigation did not afford sufficient information to enable the circumstances in which B.K. had died to be determined, the Court was precluded from finding that an effective criminal investigation had been carried out in accordance with Article 13, whose requirements went beyond the obligation under Article 2 to carry out an investigation. Consequently, it held unanimously that there had been a violation of Article 13.   Under Article 41 (just satisfaction), the Court awarded the applicants jointly EUR 15,000 for non-pecuniary damage and EUR 3,500 for costs and expenses. (The judgment is available only in French.)   Gümüşten v. Turkey (no. 47116/99)   Violation Article 6 § 1 Şemsettin Gümüşten is a Turkish national born in 1952 and living in Mardin, Turkey.   He complained of the length of criminal proceedings concerning his alleged membership of an illegal organisation, relying on Article 6 § 1 (right to a fair trial within a reasonable time). He was taken into custody on 22 December 1980 and the proceedings against him were terminated on 13 July 1998. The judgment in his case became final on 10 September 1998.   Finding that the proceedings had lasted 17 years, eight months and 27 days, of which 11 years, seven months and 22 days could be taken into consideration by the Court [3] , the Court held, unanimously, that there had been a violation of Article 6 § 1 and awarded the applicant EUR 12,000 for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in English.)     Violation Article 10 Özkaya v. Turkey (no. 42119/98)   Violation Article 6 § 1 The applicant, Zübeyir Özkaya, is a Turkish national who was born in 1955 and lives in Çanakkale (Turkey).   He was one of the organisers of the traditional Kurdish Festival of “ Newroz ” which took place on 21 March 1997 and used the occasion to make a speech which was strongly critical of the regime. On 17 September 1997 Istanbul State Security Court convicted and fined him for inciting others to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions. The applicant’s appeal to the Court of Cassation was dismissed.   He complained that his criminal conviction had infringed his right to freedom of thought, expression and association, contrary to Articles 9, 10 and 11 of the Convention. Relying on Article 6 § 1 (right to an independent and impartial tribunal), he further alleged that the State Security Court which had tried and convicted him did not constitute an “independent and impartial tribunal”, as one of its members was a military judge.   The Court decided that the complaints of infringements of his right to the freedom of thought, expression and association should be examined solely under Article 10. It found that the reasons given by the domestic courts could not be regarded by themselves as sufficient to justify the interference with the applicant’s right to freedom of expression. Although certain parts of the speech portrayed the Turkish State in a very negative light, and thus contained hostile overtones, they did not encourage the use of violence, armed resistance or insurrection, and did not constitute hate speech, which in the eyes of the Court was an essential factor to be taken into consideration. The Court found that the applicant’s conviction and sentence were disproportionate to the aims pursued and thus not “necessary in a democratic society”. It therefore held unanimously that there had been a violation of Article   10.   It further held unanimously that there had been a violation of Article 6 § 1 on account of the lack of impartiality and independence of the State Security Court.   Under Article 41 of the Convention (just satisfaction) it awarded Mr Özkaya EUR 3,000 for non-pecuniary damage and EUR 2,500 for costs and expenses. (The judgment is available only in French.)   Şahindoğan v. Turkey (no. 54545/00)   Violation Article 6 § 1 The applicant, Mahmut Şahihdoğan, is a Turkish national who was born in 1967 and is at present imprisoned at the remand prison in Buca (Turkey).   In December 1998 he was sentenced to twenty-years’ imprisonment for being a member of an illegal organisation, the TDHP (Popular Revolutionary Party of Turkey).   The applicant complained that the State Security Court which had tried and convicted him did not constitute an “independent and impartial tribunal”, as one of its members was a military judge. Relying on Article 6 § 1 of the Convention (right to a fair trial), he complained of the unfairness of the proceedings.   The Court held unanimously that there had been a violation of Article 6 §   1 on account of the lack of independence and impartiality of the State Security Court and that it was unnecessary to examine the other complaints under Article 6. It found that the finding of a violation in itself constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR 2,000 for costs and expenses, less EUR 685 he had already received from the Council of Europe in legal aid. (The judgment is available only in French.)     Violation Article 6 § 1 Bakalov v. Ukraine (no. 14201/02)   Violation Article 1 of Protocol No. 1 Vadim Fedorovych Bakalov is a Ukrainian national, born in 1970 and living in Odessa.   He complained about the lengthy delay in executing a decision awarding him compensation in relation to his detention and the search and seizure of his property. He relied on Article   6 §   1 (right to a fair hearing) and Article 1 of Protocol   No.   1 (protection of property).   Finding that the Ukrainian authorities had failed, for more than two-and-a-half years, to take the necessary measures to comply with the judgment in the applicant’s favour, the Court held, unanimously, that there had been a violation both of Article   6 §   1 and Article 1 of Protocol No. 1. The Court awarded the applicant EUR 1,200 for non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in English.)     Violation Article 6 § 1   Violation Article 1 of Protocol No. 1 Mykhaylenky and Others v. Ukraine (nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02, and 42814/02)   The 11 applicants are all Ukrainian nationals living in Chernigiv, Ukraine.   They complained about the non-enforcement of court decisions awarding them various sums for, among other things, salary arrears. They relied on Article   6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   The Court found that Ukraine was responsible for the debts of the applicants’ former employer, a State-owned company. Noting that, by failing to comply with the judgments given in favour of the applicants, the national authorities prevented for a considerable period of time and still prevent the applicants from receiving in full the money to which they were entitled, the Court held, unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1.   The Court awarded the applicants the total sum of EUR 14,366.62 (individual sums ranging from EUR 707.59 to EUR   2,271.38) for pecuniary damage and EUR 26,720 (individual sums ranging from EUR   1,400 to EUR 3,360) for non-pecuniary damage. The Court awarded each applicant EUR 135 for costs and expenses. (The judgment is available only in English.)   ***   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. More detailed information about the Court and its activities can be found on its Internet site. [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 5 May 1998, the date when the European Convention on Human Rights entered into force in Russia. [3] From 28 January 1987 when Turkey recognised the right of individual petition.