CEDH · PRESS;GENERAL;ENG — 18 janvier 2005

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[1]     Violations Article 5 § 3   Violation Article 5 § 4 E.M.K. v. Bulgaria (application no 43231/98)   Violation Article 6 § 1 The applicant, E.M.K., is a Bulgarian national, born in 1973 and living in Sofia.   He was charged in absentia with aggravated robbery on 23 August 1995 and, on 8 May 1996, he turned himself in and was placed in detention.   His requests for release on bail were unsuccessful. On 8 May and 8 September 1997 Sofia City Court refused the requests without hearing the applicant and, on 7 October 1997, the Supreme Court of Cassation examined his appeal in private, in the presence of a prosecutor. The applicant was held in detention until 6 February 1998.   He was finally acquitted, the judgment confirming his acquittal entering into force on 11 February 2002.   The applicant complained, among other things, about the length of his detention (lasting one year and nine months) and that he was not brought promptly before a judge, relying on Article 5 § 3 (right to be brought promptly before a judge) of the European Convention on Human Rights. He also complained that he was not present when his requests for release were examined but that the prosecutor was, in breach of the principle of equality of arms, and that he was not allowed a continuing review of his detention at reasonable intervals, relying on Article   5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. He also complained, under Article 6 § 1 (right to fair trial within a reasonable time), about the length of the criminal proceedings against him, which lasted at least five years and nine months.   The European Court of Human Rights observed that the applicant’s detention was ordered by an investigator and confirmed by a prosecutor, neither of whom had seen the applicant and neither of whom were sufficiently independent and impartial for the purposes of Article 5 § 3, in view of the practical role they played in the investigation and the prosecution and the prosecutor’s potential participation as a party to the criminal proceedings. The Court therefore held, unanimously, that there had been a violation of Article 5 § 3 concerning the applicant’s right to be brought before a judge or other officer authorised by law to exercise judicial power.   The Court also found that the authorities had failed to convincingly demonstrate the need for the applicant’s remand in custody for a period of one year and nine months. Neither had they acted with the diligence required of them in such circumstances, having apparently failed to take account of the fact that an accused person in detention was entitled to have his case given priority and conducted with particular expedition. The Court therefore held, unanimously, that there had been a further violation of Article   5 § 3 concerning the applicant’s right to trial within a reasonable time or to release pending trial.   Concerning Article 5 § 4, the Court noted that the applicant had not been present when the national courts refused his requests for release on bail and that the Supreme Court of Cassation had examined the applicant’s appeal in the presence of a prosecutor who had an opportunity to make submissions to the court to which the applicant could not reply. Finding that the proceedings were not adversarial, the court held, unanimously, that there had been a violation of Article 5 § 4. In view of that finding the Court held that it was not necessary to examine the applicant’s further complaints under Article 5 § 4.   Having regard to its case ‑ law, the Court found that the length of the criminal proceedings against the applicant failed to satisfy the reasonable time requirement of Article 6 § 1 and, therefore, held unanimously that there had been a violation of Article 6 § 1.   The Court awarded the applicant 3,000 euros (EUR) for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in English.)       Violation Article 6 § 1 Todorov v. Bulgaria (no. 39832/98)   Violation Article 13 The applicant, Nikolai Petkov Todorov, is a Bulgarian national, born in 1968 and living in Plovdiv.   He complained about the length of the proceedings he brought on 22 November 1993 after his car was impounded and confiscated, which prevented him from using it for 11 months. The proceedings, which are apparently still pending, have lasted more than ten years. He relied on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy).   In the light of its case ‑ law and having regard to the overall duration of the proceedings and the delays attributable to the authorities, the Court considered that the length of the proceedings failed to satisfy the reasonable time requirement and therefore held, unanimously, that there had been a violation of Article 6 § 1.   The Court further found that, in the particular circumstances of the case, the applicant did not have at his disposal any domestic remedies whereby he could have expedited the examination of his civil action.   Concerning compensatory remedies, the Court had not found it established that in Bulgarian law there existed the possibility to obtain compensation or other redress for excessively lengthy proceedings. The Court therefore held, unanimously, that there had been a violation of Article 13. The applicant was awarded EUR 3,000 for non-pecuniary damage and EUR 800 for costs and expenses. (The judgment is available only in English.)   Pikić v. Croatia (no. 16552/02)   Violation Article 6 § 1 The applicant, Lazo Pikić, is a Croatian national, born in 1935 and living in Dubrovnik.   The applicant requested compensation for damage caused to his vehicle which had been requisitioned by the Croatian Military Police in 1992. He complained that he was denied access to a court concerning his request because the proceedings were stayed under the 1999 Amendments to the Civil Obligations Act. He relied on Article 6 § 1 (access to court).   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 4,000 for non-pecuniary damage. (The judgment is available only in English.)   Šoller v. Czech Republic (no. 48577/99)   Friendly settlement The applicant, Miroslav Šoller, is a Czech national who was born in 1929 and lives in Orlová-Lutynĕ (Czech Republic). He brought administrative proceedings claiming a full invalidity pension.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention, the applicant complained, among other things, of the failure to deliver the judgments of the Constitutional Court and the Supreme Court in public and of the length of the proceedings in question.     The case has been struck out following a friendly settlement in which the applicant is to receive 170,000 Czech korunas (almost EUR 5,600). (The judgment is available only in French.)   Carabasse v. France (no. 59765/00)   Violation Article 6 § 1 The applicant, Constant Carabasse, was a French national born in 1918. After his death in 2003 the Court gave his widow and his two daughters leave to continue the proceedings.   The applicant was employed as principal clerk at a Paris law firm. In that capacity he drew up a loan agreement signed by two private individuals in 1978. In 1989 the lender, Mr N., not having been paid back, brought proceedings against the applicant, alleging that he had falsely assumed the functions of a lawyer and had failed to comply with his duty to provide advice.   In a judgment of 24 February 1999 the Bourges Court of Appeal, to which the case had been referred by the Court of Cassation, ordered the applicant to pay Mr N. the equivalent of EUR 198,183 in damages for failing to comply with his professional duty to provide information and advice as the person who had drawn up the document. The applicant appealed on points of law against that judgment. In an order of 17 November 1999 his appeal was removed from the list pursuant to Article 1009-1 of the Code of Civil Procedure on the ground that he had not complied with the Court of Appeal’s judgment.   Relying on Article 6 § 1 (right to a fair hearing) of the Convention, the applicant alleged that the removal of his appeal from the Court of Cassation’s list had infringed his right of access to a tribunal.   The Court noted that the orders for the removal of the appeals from the list had been made on the ground that the applicant had failed to show that he had taken any steps demonstrating his intention to comply with the Court of Appeal’s judgment and had not alleged the existence of any circumstances giving rise to a danger or presumption of manifestly unreasonable consequences in the event of compliance. The total sum that he had been ordered to pay had been substantial, having increased with interest to almost EUR 244,000 by September 1999. When the removal of his case from the list was ordered, the applicant, then aged 81, had been in receipt of a monthly pension of EUR 1,617 and his wife, then aged 84, of a monthly pension of EUR 548, making a total of EUR 2,165 between them. In view of those modest financial circumstances, the applicant had clearly been unable to pay the full sum due.   Admittedly, the applicant had not even begun to pay the sum, which would have demonstrated his intention to comply with the Court of Appeal’s judgment. However, in view of his age, his life expectancy was limited and any effort – which would necessarily have been limited given his modest income – to make payments during the remaining years of his life would probably not have been sufficient, in accordance with the Court of Cassation’s case-law, to prevent the appeal from lapsing.   The Court of Cassation had observed that the applicant’s financial position was “no doubt modest” but did not, however, appear to have taken his age into account. In those circumstances, the removal of his appeal from the Court of Cassation’s list had been disproportionate and his effective access to that court had been hindered as a result. The Court therefore held unanimously that there had been a violation of Article 6 § 1 of the Convention and awarded the applicant’s heirs EUR 12,000 for non-pecuniary damage and EUR 4,200 for costs and expenses. (The judgment is available only in French.)   Sibaud v. France (no. 51069/99)   Violation Article 6 § 1 The applicant, Fernand Sibaud, is a French national who was born in 1934 and lives in Vesseaux (France). In 1997 he was ordered to pay a fine after being found guilty of dishonest or misleading advertising. He appealed to the Court of Appeal and the Criminal Division of the Court of Cassation but without success.   The applicant complained that the proceedings in the Court of Cassation had been unfair because he had not been sent a copy of the reporting judge’s report or the advocate-general’s submissions and the advocate-general had been present during the court’s deliberations. He relied on Article 6 § 1 (right to a fair hearing) of the Convention.   The Court held unanimously that there had been a violation of Article 6 § 1 because the applicant had not, in advance of the hearing, been sent a copy of the reporting judge’s report, whereas the advocate-general had, or been informed of the tenor of the advocate-general’s submissions, to which he had therefore had been unable to reply, and because the advocate-general had been present at the Court of Cassation’s deliberations.   The applicant did not submit any claims for just satisfaction although the Court had drawn his attention to the matter. The Court consequently held that no award should be made to him under Article 41 of the Convention. (The judgment is available only in French.)   Violation Article 1 of Protocol No. 1 Organochimika Lipasmata Makedonias A.E. v. Greece (no. 73836/01)   The applicant, Organochimika Lipasmata Makedonias A.E., is a public limited company whose head office is on the road linking the towns of Katerini and Athens.   The applicant company used to own real estate that was expropriated in 1994 in order to build a main road linking the towns of Platamonas and Katerini in Pieria. In accordance with domestic legislation, the authorities decided that the applicant company should not receive any compensation for part of the property because it should be deemed to have benefited from the construction of the road.   Relying on Article 1 of Protocol No. 1 (protection of property) to the Convention, the applicant company complained that it had not received full compensation for the expropriation of its possessions.   The Court observed that in previous judgments it had criticised the irrebuttable presumption that the benefit derived from road improvements amounted to sufficient compensation for owners whose property was expropriated. The Greek courts had consequently changed their position on the subject and owners who considered themselves to have been prejudiced were now required to bring a further set of civil proceedings.   The Court considered that where an individual’s property had been expropriated, the ensuing proceedings should include an overall assessment of the consequences. Although the presumption in question was no longer irrebuttable, there had been no significant improvement in the system for compensating persons whose property had been expropriated. The presumption still existed and the courts that assessed awards of compensation did not take into account the nature of the work carried out or whether the owners benefited from it. Instead, the new system required owners who considered themselves to have been prejudiced by such work to make a fresh application to the civil courts in order to prove that their property had been adversely affected. Those proceedings might be lengthy and would take place in addition to the proceedings for the assessment of compensation, which themselves comprised three stages.   In maintaining a presumption of “self-compensation” and requiring the owners concerned to bring several sets of proceedings, the Greek authorities had upset the fair balance which had to be struck between the protection of individual rights and the requirements of the general interest. The Court accordingly held that there had been a violation of Article 1 of Protocol No. 1 and awarded the applicant company EUR 10,000 for pecuniary damage and EUR 587 for costs and expenses. (The judgment is available only in French.)     Violation Article 6 § 1 Popov v. Moldova (no. 74153/01)   Violation Article 1 of Protocol No. 1 The applicant, Serghei Popov, is a Moldovan national, born in 1925 and living in Chişinău (Moldova).   The applicant complained that a court judgment of 5 November 1997 ordering the restitution of his parent’s home to him was not enforced. He relied on Article 6 § 1 (right to a fair hearing within a reasonable time), Article 1 of Protocol No. 1 (protection of property), Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right to an effective remedy).   The European Court of Human Rights held, unanimously, that the applicant’s complaint under Article 3 was inadmissible.   Observing that the judgment of 5 November 1997 was not enforced for almost seven years, the Court held, by six votes to one, that there had been a violation of Article 6 § 1, but that it was not necessary to rule on the complaint under Article 13.   The Court further noted that, by failing to comply with the judgment in question, the national authorities prevented the applicant from having the occupants evicted and from taking possession of his house. The Court considered that lack of funds and of available alternative accommodation could not justify such an omission and held, by six votes to one that there had been a violation of Article 1 of Protocol No. 1. The applicant was awarded EUR 5,000 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in English.)   Dolaşan v. Turkey (no. 29592/96)   Violation Article 6 § 1 Özdoğan v. Turkey (no. 49707/99)   Mehmet Ali Dolaşan is a Turkish national who was born in 1962 and lives in Istanbul. Mehmet Resat Özdoğan is a Turkish national who was born in 1968 and lives in Afşin (Turkey).   In both cases the applicants were convicted by a national security court to three years and nine months’ imprisonment for aiding and abetting an illegal organisation, in Mr Dolaşan’s case the THKP-C Devrimci Sol – Devrimci Işçi Hareketi and in Mr Özdoğan’s case the PKK.   The applicants complained under Article 6 (right to a fair hearing) of the Convention that the proceedings resulting in their conviction had been unfair, particularly as one of the members of the national security court was a military judge.   In both cases 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 in the Dolaşan case, 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 unanimously in both cases that the judgments constituted in themselves sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It reiterated that where it found that an applicant had been convicted by a tribunal that was not independent or 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. Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Dolaşan EUR 1,000 for costs and expenses. (The judgments are available only in French.)     Violation Article 2   Violation Article 13   No violation Article 1 of Protocol No. 1 Menteşe and Others v. Turkey (no. 36217/97) No violation Articles 3, 8, 5 § 1, 14 and 18 The applicants, all Turkish nationals, are: Abdullah Menteşe, Zühra Bozkuş, Hatun Demirhan, Mustafa Demirhan, Ayşe Harman and Süleyman Maço, who were born in Lice and currently live in Diyarbakır.   Abdullah Menteşe, Zühra Bozkuş, Mustafa Demirhan and Süleyman Maço alleged that their relatives were intentionally killed by the security forces following an operation in the village of Yolçatı, in the Lice District of Diyarbakır (Turkey) on 13 May 1994. They relied on Articles   2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for family life).   All the applicants complained that they were forcibly evicted and that their family homes and possessions were destroyed, relying on Article 5 § 1 (right to liberty and security), Article 3, Article 8 (right to respect for home) and Article   1 of Protocol No. 1 (protection of property). They further relied on Article 6 (access to court), Article 13 (right to an effective remedy), Article 18 (limitation on use of restrictions on rights) and, given their Kurdish origins, Article 14 (prohibition of discrimination).   On the basis of the material before it, the European Court of Human Rights was unable to draw a complete picture of the factual circumstances surrounding the deaths of the four men, which remained a matter of speculation and assumption. Considering there was an insufficient factual and evidentiary basis on which to conclude that the men were, beyond reasonable doubt, intentionally or recklessly killed by the security forces, as alleged by the applicants, the Court held, unanimously, that there had been no violation of Article 2, Article 3 or Article 8, concerning the deaths of the applicants’ relatives.   Concerning the investigations into the men’s deaths, the Court noted striking omissions in the way they were conducted. The first on-site inspection at the scene of the crime was made in 2001, almost seven years after the incident, and only external examinations of the bodies were carried out to establish the cause of death. In addition, the investigations, now pending for more than ten years, did not appear to have produced any tangible results.   The Court therefore concluded that the domestic authorities did not conduct a prompt and adequate investigation into the circumstances surrounding the killings. The authorities concerned disregarded their essential responsibilities in that respect. Loss of life was a tragic and frequent occurrence in the context of the security situation in south-east Turkey in the 1990s, which might have hampered the search for evidence. Nonetheless, such circumstances could not have had the effect of relieving the authorities of the obligation imposed by Article   2 to carry out an effective investigation.   In those circumstances the Court was not persuaded that the criminal-law remedies supposedly available to the applicants would have been capable of altering to any significant extent the course of the investigations that were undertaken. The applicants had therefore to be regarded as having complied with the requirement to exhaust the relevant criminal-law remedies.   The Court held, unanimously, that there had been a violation of Article 2 and of Article 13 concerning the lack of an effective investigation into the killings.   As the applicants were never arrested, detained, or otherwise deprived of their liberty, the Court held, unanimously, that there had been no violation of Article 5 § 1; their insecure personal circumstances arising from the loss of their homes did not fall within the notion of security of person as envisaged in Article 5 § 1 of the Convention.   Concerning the loss of the applicants’ homes, the Court considered that there was no sufficient, consistent or reliable evidence to establish to the necessary degree of proof that the security forces were responsible as alleged.   Consequently, the Court held, unanimously, that no findings of a violation of Articles 3 or 8 or Article 1 of Protocol No. 1 could be made and that Article 13 was inapplicable.   The Court found the applicants’ complaints under Articles 14 and 18 to be unsubstantiated and therefore held unanimously that there had been no violation of either Article.   The European Court of Human Rights awarded to Abdullah Menteşe, Zühra Bozkuş, Mustafa Demirhan and Süleyman Maço EUR 15,000 each for non-pecuniary damage and EUR 10,000 for costs and expenses. (The judgment is available only in English.)     Violation Article 6 § 1 Poltorachenko v. Ukraine (no. 77317/01)   Violation Article 1 of Protocol No. 1 The applicant, Aleksey Nikiforovich Poltorachenko, is a Ukrainian national, born in 1919 in Russia and living in Bakhchisaray (Crimea).   On 15 January 2001 the State bank was ordered to allow the applicant to recover money paid into his savings accounts, the bulk of which was payment for an invention. This judgment was quashed, however, following a protest lodged by the President of the Supreme Court in supervisory review proceedings   The applicant complained about the length and fairness of the proceedings, relying on Article 6 § 1 (right to a fair hearing within a reasonable time). He also relied on Article 1 of Protocol No. 1 (protection of property).   The Court held, unanimously, that there had been a violation of Article   6   § 1 in respect of the quashing of a final and binding judgment given in the applicant’s favour.   Taking into account the applicant’s financial and social status, his age and state of health, the Court found that the quashing of the final judgment given in his favour constituted a disproportionate interference with his right to the peaceful enjoyment of his possessions. The Court therefore held, unanimously, that there had been a violation of Article 1 of Protocol No. 1.   The Court awarded the applicant EUR 3,536.42 for pecuniary damage and EUR 5,000 for non-pecuniary damage. (The judgment is available only in English.)   Townsend v. United Kingdom (no. 42039/98)   Friendly settlement The applicant, Anthony Townsend, is a United Kingdom national, born in 1967 and living in Lancashire, England.   The applicant complained about his lack of legal representation in proceedings for non-payment of poll-tax and his detention ordered by the magistrates, relying on Article 5 §§ 1 and 5 (right to liberty and security) and Article 6 §§ 1 (right to a fair hearing within a reasonable time) and 3(c) (right to legal assistance of own choosing).   The case has been struck out following a friendly settlement in which 10,000 pounds sterling (GBP) is to be paid for any pecuniary and non-pecuniary damage and GBP 4,000 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.