CEDH · PRESS;GENERAL;ENG — 21 décembre 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sD4EF1C66 { width:41.43pt; display:inline-block } .sC0F5B988 { width:331.99pt; display:inline-block } .sD346BF2D { width:311.98pt; display:inline-block } .s4534857F { width:288.63pt; display:inline-block } .sEF1348FC { width:343.32pt; display:inline-block } .sD56F7E60 { width:128.55pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sBDE10C63 { width:164.8pt; display:inline-block } .sB99BE15B { width:332.23pt; display:inline-block } .s9710F48E { width:249.58pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   652 21.12.2004   Press release issued by the Registrar   Chamber judgments concerning Portugal, Turkey and   Ukraine   The European Court of Human Rights has today notified in writing the following four Chamber judgments, of which only the friendly-settlement judgments are final. [1]       Moreira Barbosa v. Portugal (application no. 65681/01)   Friendly settlement The applicant, Joaquim Moreira Barbosa, is a Portuguese national who was born in 1942 and lives in Maia (Portugal). In January 1996 he lodged a criminal complaint against a third party, accusing him of having issued a bad cheque, and applied to join the proceedings as a civil party. Proceedings for the enforcement of the subsequent judgment, in which the defendant was ordered to pay the applicant damages, are still pending.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights, the applicant complained of the length of the criminal proceedings which he had joined as a civil party.   The case has been struck out following a friendly settlement in which the applicant is to receive 5,000 euros (EUR) for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)     No violation Article 3   No violation Article 5 § 1   Violation Article 5 §§ 3 and 4   Violation Article 13 Talat Tepe v. Turkey (no. 31247/96)   No violation Article 14 The applicant, Talat Tepe, is a Turkish national, who was born in 1961 and lives in Istanbul.   On 9 July 1995 he was arrested on suspicion of aiding and abetting an illegal terrorist organisation and prohibited from leaving the country. He was detained successively at Istanbul Security Directorate and Bitlis Security Directorate. On 20 July 1995 he was taken before a judge at the Diyarbakır State Security Court, who ordered his release pending trial.   On 24 November 1995 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court accusing the applicant of aiding and abetting an illegal armed organisation, contrary to Articles   31 and 169 of the Criminal Code and Article 5 of Law no. 3713 on the Prevention of Terrorism.   On 6 June 1996 the Diyarbakır State Security Court acquitted the applicant of the charges due to lack of evidence.   He alleged that he had been ill-treated and tortured by police officers during his prolonged detention in police custody and that his detention was unlawful. He relied on the following provisions of the Convention: Article 3 (prohibition of torture and inhuman or degrading treatment), Article 5 §§ 1, 3 and 4 (right to liberty and security) and Article 13 (right to an effective remedy). He also claimed that he suffered discrimination given his Kurdish origin, in breach of Article 14 (prohibition of discrimination).   During his detention the applicant was seen by doctors on two occasions. On 23 July, after his release, he visited a third doctor on his own initiative.   Article 3 The only evidence which corroborated the applicant’s allegations of torture was a medical report dated 15   August 1995, following his examination by the third doctor. The Government had pointed out several inconsistencies in that report. It did not look like a standard medical report. The report did not refer to the name of the medical institution or the diploma number of the doctor. Furthermore, it did not say whether the applicant was actually examined by the doctor, how, to what extent and when. The Court was struck by the fact that the applicant did not submit this medical report to any of the domestic authorities, or mention it when his statements were being taken by the investigator and the public prosecutor. It was strange that the applicant did not submit to the national authorities the only evidence which could have substantiated his allegations of torture and could have allowed him to have a remedy in domestic law. In conclusion, since the evidence before it did not enable it to find beyond all reasonable doubt that the applicant had been subjected to ill-treatment, the Court did not find it proven that there had been a violation of Article   3 of the Convention.   Article 5 § 1 The applicant had been taken into custody on suspicion of aiding and abetting an illegal terrorist organisation. The police had acted on the basis of an arrest warrant, issued by the public prosecutor at the Diyarbakır State Security Court. The arrest warrant had been based on information previously provided by two members of the PKK. Having regard to the specific circumstances of the case, the Court considered that the applicant’s detention was lawful and that he had been detained on reasonable suspicion of having committed an offence, within the meaning of Article 5 § 1 (c) of the Convention.   Nor had he been detained in breach of the requirements of domestic law. The applicant had been apprehended and detained on the strength of a warrant issued by the public prosecutor and his detention extended on the authorisation of a public prosecutor. There had therefore been no violation of Article 5 § 1 of the Convention.   Article 5 § 3 Even though the investigation of terrorist offences presented the authorities with special problems, the Court could not accept that it had been necessary to detain the applicant for 12 days without judicial intervention. There had therefore been a breach of Article   5   §   3 of the Convention.   Article 5 § 4 The Court had already indicated in previous cases that it was not persuaded that at the material time there existed an effective remedy before a State Security Court by which an applicant could challenge the lawfulness of his detention in police custody. It saw no reason to depart from that conclusion in the present case. As to the length of the applicant’s custody before being brought before a judge - 12 days – this period, which had been lawful under the relevant domestic law at the time, sat ill with the notion of “speedily” contained in Article 5 § 4. There had accordingly been a breach of Article   5 § 4 of the Convention.   Article 6 The Court did not find it necessary to determine whether there had been a violation of Article 6 § 1 of the Convention.   Article 13 With reference to earlier cases, the Court did not consider that the investigation into the applicant’s allegations could properly be described as thorough, effective and independent such as to meet the requirements of Article 13. There had accordingly been a violation of Article 13 of the Convention.   Article 14 The Court did not find it proven that there had been a violation of Article   14 of the Convention.   In conclusion, the Court held unanimously that there had been no violation of Articles 3, 5 § 1 and 14, and that there had been a violation of Article 5 §§   3 and 4 and Article 13. The Court awarded the applicant EUR 1,000 for pecuniary damage, EUR 5,000 for non-pecuniary damage and EUR 7,000 for costs and expenses. (The judgment is available only in English.)   Vural v. Turkey (no. 56007/00)   Violation Article 6 § 1 The applicant, Rıza Vural, was a Turkish national born in 1925. Following his death in 2002 the Court gave his children leave to pursue the proceedings as his heirs. In 1995 the applicant was sentenced by a national security court to three years and nine months’ imprisonment for aiding and abetting an illegal organisation, the PKK.   The applicant complained under Article 6 (right to a fair hearing) that the proceedings resulting in his conviction had been unfair, particularly as one of the members of the national security court was a military judge.   The Court held unanimously that there had been a violation of Article 6 § 1 as regards the alleged lack of independence and impartiality of the national security court. With regard to the other complaints 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 persons subject to its jurisdiction. It accordingly considered that there was no need to examine those complaints.   The Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. Under Article 41 (just satisfaction) of the Convention, it awarded the applicant’s heirs EUR 1,000 for costs and expenses. (The judgment is available only in French.)     Violation Article 6 § 1   Violation Article 1 of Protocol No. 1 Derkach and Palek v. Ukraine (nos. 34297/02 and 39574/02) The applicants, Valentyna Mykolayivna Derkach and Mykola Ivanovych Palek, are Ukrainian nationals, who were born in 1962 and 1957 respectively, and live in Vyshgorod, Ukraine.   They complained, under Articles 6 § 1 (right to a fair hearing) and 13 (right to an effective remedy) of the Convention, about the non-enforcement of judgments given in their favour in 2002 and that they had no effective domestic remedy to recover the debts (salary arrears and compensation) owed to them by their former employer, a State-owned enterprise. They further complained, under Article 1 of Protocol No. 1 (protection of property), that they were prevented from receiving in full the money to which they were entitled.   Noting that the judgments given in favour of the applicants had still not been executed, the Court held, unanimously, that there had been a violation of Article   6 § 1. The Court did not consider it necessary in the circumstances to rule on the same complaint under Article   13.   The Court further considered that the continuing impossibility for the applicants to obtain execution of their judgments (more than two years so far) constituted an interference with their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1.   While that interference might be considered justified in part by the prohibition on the export of the contaminated property of the applicants’ former employer from the Chernobyl zone (thus preventing the attachment of the company’s property), in the Court’s opinion, such a measure, undeniably involving the pursuit of a legitimate public interest, did not strike a fair balance between the State’s interests and those of the applicants. In the event, the entire financial burden had fallen on the applicants and the Ukrainian Government had not explained to its satisfaction why funds could not be earmarked for honouring the debts owed to the applicants.   By failing to comply with the judgments given in favour of the applicants, the national authorities had prevented and still prevent the applicants from receiving in full the money to which they were entitled.   Accordingly the Court held, unanimously, that there had also been a violation of Article   1 of Protocol No.   1.   The Court awarded the first applicant EUR 1,405.08, and the second applicant EUR 2,380.92 for pecuniary damage. (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. [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.