CEDH · PRESS;GENERAL;ENG — 22 février 2005

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[1]   Pakdemirli v. Turkey (no. 35839/97)   Violation of Article 10 The applicant, Ekrem Pakdemirli, is a Turkish national who was born in 1939 and lives in Ankara. Now a university lecturer, at the material time he was a member of the Turkish national assembly and Vice-President of the ANAP (Motherland Party), an opposition party.   On 14 April 1995 he made a speech at a press conference held to mark the opening of a motorway. In his speech the applicant made very harsh criticisms of the then President of the Republic, Süleyman Demirel, whom he described, among other epithets, as a liar and slanderer, criticising him for causing the parliamentary immunity of two ANAP Ministers against whom proceedings were later discontinued to be lifted. His remarks were widely reported in the media.   Acting under Article 49 § 2 of the Code of Obligations, Mr Demirel brought an action against the applicant seeking compensation for defamation and insults to him both in person and in his capacity as President of the Republic. On 12 July 1995 the Ankara District Court ordered Mr Pakdemirli to pay 5,000,000,000 Turkish liras, the equivalent of approximately 55,000 euros (EUR), to Mr Demirel in damages. The Court of Cassation allowed an appeal on points of law by Mr Pakdemirli but when the case was remitted the District Court upheld its previous judgment. A second appeal on points of law was dismissed in June 1996.   In January 1997 the applicant paid the sums he had been ordered to pay, which corresponded at that time, with interest, to approximately EUR 60,000. He submitted that that sum was the highest award ever made in Turkey in damages for defamation.   Relying on Article 10, the applicant submitted that the judgment against him had infringed his right to freedom of expression. In addition, relying on Article 6 § 1 (right to a fair trial), he complained that the proceedings which had led to that judgment had been unfair, submitting that this had entailed an infringement of his right to the peaceful enjoyment of his possessions, contrary to Article 1 of Protocol No. 1 (protection of property).   The essential point to be determined was whether the interference with the applicant’s right to the freedom of expression had been “necessary in a democratic society”. The European Court of Human Rights noted in the first place the status of the two parties to the dispute at the material time: on one side was the applicant, a member of parliament and former minister; on the other was Mr Demirel, the President of the Republic. The applicant was also Vice-President of the ANAP, which had been in power before the material time, when Mr Demirel was more actively involved in politics, as leader of the opposition. The two figures therefore had a long history of political antagonism. Secondly, the Court noted that the facts of the case were themselves situated in a political context.   The Court further observed that the terms used in the offending speech more closely resembled a hail of insults and imprecations than political criticism. It was difficult to interpret the remarks in question, which could be regarded as polemical, and which seemed to contain, to some extent, a gratuitous personal attack, as an opinion in a political debate, even though the protagonists and the context of the speech did indeed belong to the political sphere.   Concerning the grounds for the order against the applicant, the Court noted that the Turkish courts had applied the criterion of “the parties’ socio-economic status”, laid down in Article 49 of the Code of Obligations, in a way which departed from the normal practice, using it not to preserve a balance between the parties’ respective situations, but to fix the amount of damages to be awarded as high as possible. In addition, the applicant’s social level had worked against him, and the court had referred to the criminal legislation that would have been applicable if he had not been covered by parliamentary immunity. The assessment of the civil penalty also seemed to have been arbitrary on account of another disturbing feature of the case, namely the fact that the assessment had been made not in the light of the wrong suffered by the claimant but by way of over-protecting the status of President of the Republic. The Court observed that it had already had occasion to rule that privileged protection of a head of State through special legislation on defamation was not, in principle, consistent with the spirit of the Convention.   The Court considered, in conclusion, that the Turkish courts had turned the damages award into a form of civil fine. That being so, it was not persuaded that the aim sought by the order against the applicant had been the aim contemplated in Article 49 of the Code of Obligations, especially as the reasoning followed by the domestic court made it necessary to consider the proportionality of the penalty imposed on the applicant. In the present case the civil court had confined its attention, when determining the amount of damages, to the possibility of the applicant’s prosecution, a course which had not been followed on account of his parliamentary immunity, but a civil court was not empowered to substitute itself for a criminal court.   Moreover, the Court was astonished that the Turkish courts had not applied Article 4 of the Civil Code, which emphasised the principle of proportionality when making awards; it considered that an award of damages on such a scale had to be particularly open to criticism. Lastly, the Turkish Government had not supplied any relevant information to contradict the applicant’s assertion that the damages awarded in the proceedings had been the highest ever awarded in this type of case.   In the light of those considerations, the Court considered that the order requiring the applicant to pay damages had been “prescribed by law” and had pursued a “legitimate aim” for the purposes of Article 10 § 2. However, the way in which the law had been applied was open to criticism. In view of the size of the sum awarded in relation to those generally awarded in proceedings of that nature, and the relative gravity of the offending remarks, the Court considered that such an award could not be regarded as “necessary in a democratic society”, and that it was not proportionate to the aim pursued by the national legislation. It accordingly held unanimously that there had been a violation of Article 10 of the Convention. Having regard to that conclusion, it considered that it was not necessary to examine separately the complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 35,000 for damage and EUR 3,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 8 Novoseletskiy v. Ukraine (no. 47148/99)   Violation of Article 1 of Protocol No. 1 The applicant, Romuald Nikolayevich Novoseletskiy, is a Ukrainian national who was born in 1938 and lives in Ussuriysk (Russia).   In June 1995 the trade union branch at the Melitopol State Teacher Training Institute, which was then the applicant’s employer, granted him a permit of unlimited duration authorising him to occupy a 25.1 sq. m. apartment in a block of flats in that city. The applicant resigned from the Institute in August 1995 and went to live in Vladimir, Russia, to prepare his doctoral thesis. In October 1995 the Institute annulled its decision of 1995 and granted a permit in respect of the same apartment to T., another employee, who claimed to have taken possession of the empty flat in November. When he returned to Melitopol in January 1996 the applicant and his wife were obliged to move in with relatives in Kotovsk because their flat was occupied.   The applicant brought court proceedings with a view to recovering his flat. At the end of those proceedings, which ended with a judgment of 6 January 1999 upheld on appeal, the Melitopol District Court allowed the applicant’s claim in part on the ground that his move to Vladimir had been only temporary and that Melitopol remained his permanent place of residence. Enforcement proceedings were then brought and as a result the applicant was able to take possession of the property on 28 March 2001, after a court bailiff had certified that the apartment was unfit for human habitation.   The applicant also lodged a criminal complaint with the Melitopol branch of the Ministry of the Interior, asserting that his belongings had been removed from the flat. The proceedings, which were closed and reopened several times, ended with a decision to discontinue the criminal proceedings since no offence had been committed.   The applicant submitted that, as a result of the unlawful entry into his apartment during his absence, his belongings had been stolen, and that on account of his eviction from the flat he and his wife had been obliged to live with the members of another household. He relied on Article 8 of the Convention (right to respect for private and family life) and Article 1 of Protocol No. 1 (protection of property).   The Court was not satisfied that the courts which dealt with the case had used all the means at their disposal to protect the applicant’s private and family life during the proceedings, which had lasted for three years. It was particularly struck by the fact that the Melitopol District Court had dismissed the applicant’s claim for damages on the ground that “compensation for non-pecuniary damage in landlord-and-tenant disputes [was] not provided for by law”. But his claim went beyond the strictly landlord-and-tenant aspect of the case since he had asked the courts to deal with the loss he had suffered as a result of the entry into his apartment and his prolonged inability to occupy it. Furthermore, the District Court had not looked into the legality of making the flat available in the applicant’s absence, although the importance of that question was clear and undeniable, nor had the prosecution service taken any interest in the matter.   With regard to the part played by the Institute, the Court noted that it performed “public duties” assigned to it by law under the supervision of the authorities, so that it could be considered to be a “governmental organisation”. The Court was of the opinion that, as possessor and manager of part of the State’s housing stocks, the Institute could have reacted more appropriately, for example by providing the applicant with temporary accommodation, without even waiting for a court order. But, on the contrary, it had agreed to the sale of the flat to T. during the judicial proceedings without informing the District Court. That decision, subsequently declared illegal, had caused enforcement of the judgment of 6 January 1999 to be delayed.   The applicant had recovered a flat unfit for human habitation. However, the Institute had neither undertaken the work needed to repair the damage noted as quickly as possible nor taken steps to establish what had happened and prosecute those responsible for the serious damage to part of its housing stock. That being so, the Court found it difficult to see any trace of the State supervision over housing stocks described in the Ukrainian Housing Code.   In the light of those considerations, the Court held unanimously that there had been a violation of Article 8.   With regard to the disappearance of the applicant’s possessions, the situation was that with the authorisation of a public authority – the Institute – two persons had entered the applicant’s flat in his absence, one of whom, designated by the Institute, was the person who had just obtained a permit to occupy it, and who could not therefore offer sufficient guarantees of impartiality. Quite obviously, the question of the legality of this entry and that of the liability if any of the two persons involved, deserved more attention than they had received from either the courts or the prosecution service.   The Court reiterated that a prosecution service was one element of a State governed by the rule of law, whose interests were identical with the need for the proper administration of justice, and that, if there were no obligation on that authority to give reasons for its decisions, the rights guaranteed by the Convention would be deprived of their “practical and effective” meaning. Without requiring a detailed reply to each of a complainant’s arguments, that obligation did nevertheless presuppose that the injured party could expect attentive and careful examination of his main claims.   In the present case the Court noted that, while it had meticulously verified the existence of the possessions the applicant said he had lost, the prosecution service had not shown the same attention to his complaints, or the responsibility of the authorities and persons implicated in them. That being so, it considered that the State had not maintained a fair balance between the competing interests and had not made the effort which could normally have been expected to conduct an efficient and impartial investigation into the disappearance of the applicant’s possessions. The Court accordingly held unanimously that there had been a violation of Article 1 of Protocol No. 1.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 8,000 for damage. (The judgment is available only in French.)     Violation of Article 6 § 1 Sharenok v. Ukraine (no. 35087/02)   Violation of Article 1 of Protocol No. 1 The applicant, Dmytro Mykolayovych Sharenok, was a Ukrainian national, born in 1948. Following his death in 2004 the Court gave his widow and children permission to continue the proceedings before it in his stead.   Relying on Article 6 § 1 of the Convention (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property), the applicant complained of the failure to enforce a court decision awarding him a sum of money for arrears of pay.   The Court noted that the State was liable for the debts of the applicant’s former employer, a publicly-owned company. Observing that, by failing to comply with the judgment in the applicant’s favour, the national authorities had been preventing him for more than six years from receiving the full amounts he was owed, the Court held unanimously that there had been violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.   It awarded the applicant’s heirs EUR 677 for pecuniary damage, EUR 3,000 for non-pecuniary damage and EUR   300 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.