CEDH · PRESS;GENERAL;ENG — 22 mars 2005

.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 } .sD31CCF7E { width:91.46pt; display:inline-block } .sD472578 { width:317.57pt; display:inline-block } .sCBA0C532 { width:62.17pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA7A9E2F1 { width:144.82pt; display:inline-block } .s40E856DB { width:343.57pt; display:inline-block } .s72F2C2BE { width:181.48pt; display:inline-block } .sDE1F8FF9 { width:337.58pt; display:inline-block } .s1D90AD8F { width:314.92pt; display:inline-block } .sD479557A { width:330.91pt; display:inline-block } .s28F9D886 { width:138.84pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .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   144 22.3.2005   Press release issued by the Registrar   Chamber judgments concerning Finland, Moldova, Poland, Sweden and   Turkey   The European Court of Human Rights has today notified in writing the following six Chamber judgments, of which only the friendly-settlement judgment is final. [1]   M.S. v. Finland (application no 46601/99)   Violation of Article 6 § 1 The applicant, M.S., is a Gambian national, born in 1955 and currently living in Gambia.   M.S. was convicted of aggravated sexual assault on his then 15-year-old step-daughter at the family home. He disputed that they had ever been alone together in the apartment where the offence allegedly occurred. He was sentenced to 11 months’ imprisonment and ordered to pay compensation. The applicant’s then wife later changed her position to support the applicant and retracted her previous submission.   The applicant complained that he was not given an opportunity to respond to a letter dated 26 November 1996 which was submitted by his ex-wife without his knowledge to the Court of Appeal. He relied on Article   6 § 1 (right to a fair hearing) of the European Convention on Human Rights   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 of the Convention because the applicant had not been informed that the Court of Appeal had received the letter and because he had not been given the opportunity to comment on it. He was awarded 3,000 euros (EUR) for non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in English.)     Violation of Article 6 § 1 Roşca v. Moldova (no. 6267/02)   Violation of Article 1 of Protocol No. 1 The applicant, Ion Roşca, is a Moldovan national, born in 1943 and living in Chişinău.   In 1999 the applicant had a disagreement with his bank concerning the redemption of 2,000 shares. He brought an action against the bank, seeking compensation, and was awarded 102,653 Moldovan lei (equivalent to 8,959 euros (EUR) at that time) by a final judgment from the Court of Appeal on 17 April 2001.   On 11 July 2001, following a request from the Prosecutor General’s Office, the Supreme Court of Justice quashed the judgment of 17 April 2001.   The applicant complained that the judgment of 11 July was in violation of Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   The Court noted that the request for annulment was a procedure by which the Prosecutor General’s Office could challenge any final decision upon the request of one of the parties to the proceedings. By allowing the request, the Supreme Court of Justice set at naught an entire judicial process which had ended in a final and enforceable judicial decision, which infringed the principle of legal certainty.     The Court therefore held, unanimously, that there had been a violation of Article 6 § 1.   Furthermore, quashing such a judgment after it had become final constituted an interference with the applicant’s right to the peaceful enjoyment of his possessions. Even assuming that such an interference might be regarded as serving a public interest, the Court found that it was not justified, since a fair balance was not preserved and the applicant was required to bear an individual and excessive burden. The Court therefore held, unanimously, that there had been a violation of Article 1 of Protocol No.   1.   The Court awarded the applicant EUR 3,500 for pecuniary damage, EUR 2,000 for non-pecuniary damage and EUR 690 for costs and expenses. (The judgment is available only in English.)   Szenk v. Poland (no. 67979/01)   Violation of Article 6 § 1 The applicant, Bogdan Szenk, is a Polish national, born in 1929 and living in Warsaw.   In 1990 the applicant brought proceedings for compensation concerning the expropriation of land in Warsaw.   He complained about the length of the proceedings, which have so far lasted over 13 years (of which the Court can take into consideration just over 11 years and 10 months [2] ) and are still pending. He relied on Article 6 § 1 (right to a hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property).   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 and that there was no need to examine the complaint under Article 1 of Protocol No. 1. The Court awarded the applicant EUR 5,000 for non-pecuniary damage. (The judgment is available only in English.)   Toimi v. Sweden (no. 55164/00)   Friendly settlement The applicant, Ritva Toimi, is a Finnish national, born in 1938 and living in Hälleforsnäs.   As from 1995 the applicant received a Swedish state pension (in addition to her Finnish state pension) of 3,754 Swedish kronor (SEK). From September 1997, the amount was reduced to SEK 776. However, the applicant’s case file went missing and she did not receive formal notification of this decision to reduce her pension. Following a complaint by the applicant, the Chancellor of Justice found that, due to the mishandling of her case, she had been deprived of her right to appeal. On 23 August 2000 a further decision fixed the applicant’s pension at SEK 776. She appealed unsuccessfully.   The applicant complained that she did not have effective access to a court and about the length of the proceedings, relying on Article 6 § 1 (right to a fair hearing).   The case has been struck out following a friendly settlement in which SEK 65,000 (approximately EUR 7,200) is to be paid to the applicant. (The judgment is available only in English.)   Ay v. Turkey (no. 30951/96)   No violation Article 3 The applicant, Ali Ihsan Ay, is a Turkish national of Kurdish origin and of the Alevi faith who was born in 1971. He has apparently been living in Germany since April 2001 and has been granted political refugee status there. The facts of the case are in dispute.   The applicant maintains that he was abducted in November 1995 by members of the JİTEM, an intelligence and anti-terrorist unit alleged to be attached to the gendarmerie although the gendarmerie authorities have always denied its existence. He states that he was held prisoner in a basement cell for six days, during which time he was questioned about his activities within an illegal organisation, the DHKP-C (Revolutionary People’s Liberation Party/Front). He says that he was threatened with death, beaten with an iron bar, burnt repeatedly with cigarettes and partly asphyxiated when a plastic bag was put over his head.   He was released at about 4 p.m. on 20 November 1995 and lodged a complaint the following day. At the request of the public prosecutor, he was examined twice by a doctor who certified that he had multiple bruising and wounds on his body and marks made by cigarette burns, and was unfit for work for a period of 15 days.   A criminal investigation was launched, but the case file was transferred to the Tekirdağ Administrative Council under the Prosecution of Civil Servants Act, as the applicant’s complaint referred to “plainclothes police officers” and “members of the armed forces in civilian clothing”. On 17 June 1996 the Administrative Council found that there were no grounds for prosecuting members of the security forces and that the assault had been the work of third parties. The case file was then transferred to the Tekirdağ Public Prosecutor, who ruled on 4 December 2003 that the applicant’s allegations were not credible.   In April 2001 the applicant left Turkey to settle in Germany.   The applicant complained that he had been held prisoner and tortured by members of the State armed forces, in breach of Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment). He further alleged that his abduction amounted to an unlawful deprivation of liberty, in breach of Article 5 (right to liberty and security).   The Court noted that the applicant’s allegation that he had been taken prisoner and tortured by or with the complicity of agents working for the State was based more on an extrapolation of the facts than on evidence proving his case beyond all reasonable doubt. Furthermore, there was no evidence to cast any doubt on the investigators’ findings that the applicant might have been the victim of an assault by third parties.   Nor could the Court objectively accuse the Turkish authorities of unjustifiably failing to take measures to protect the applicant, as he had never previously alleged that he had been or had felt threatened and had at no stage sought the authorities’ protection or informed them that he feared for his safety. Accordingly, the Court held unanimously that there had been no substantive violation of Article 3 of the Convention.   As regards the Turkish authorities’ investigation of the alleged offences, the Court considered that, despite some shortcomings on the part of the authorities, the main reason the investigation had not been effective was the applicant’s refusal to take part in a reconstruction or to examine the photographs of security personnel. These appeared to have been vital steps in the investigation, especially in view of Mr Ay’s assertion that he could describe the premises where his abductors had taken him and identify at least two of his torturers.   The Court found that, despite its failure to produce results, the investigation could be considered satisfactory as a whole because the applicant could not legitimately have expected a more positive outcome in view of his and his counsel’s failure to do more to help the investigators uncover the truth. Consequently, the Court held that there had been no procedural violation of Article 3 of the Convention either.   In those circumstances, the Court held that no separate examination of the applicant’s complaint under Article 5 of the Convention was necessary. (The judgment is available only in French.)     Violation of Article 2 (inadequate investigation)   No Violation of Article 2 (loss of life)   Violation of Article 13 Güngör v. Turkey (no. 28290/95)   No violation of Article 3 The applicant, Erol Güngör, is a Turkish national who was born in   1940 and lives in İzmir (Turkey).   At the material time he was a member of parliament and lived with his family in an official apartment in the parliamentary quarter of Ankara. In June 1991 his 22-year-old son was found dead in his bed in the apartment, having received multiple stab wounds and a bullet to the head. An autopsy concluded that the immediate cause of death was a stab wound to the right of the chest.   Criminal and parliamentary investigations into his death did not lead to the assailants being identified.   Owing to the entry into force of an amnesty law (Law no. 4616 on the amnesty of certain offences committed before 23   April 1999) in December 2000, no proceedings could be brought against the investigating officers for dereliction of duty or negligence in the conduct of the investigation. There was no official inquiry into the general security measures in place in the parliamentary quarter.   According to certain Turkish newspapers, in November 2003 the Minister of the Interior instructed the Ankara Security Headquarters to set up a special unit to reopen the criminal investigation into the murder. In addition, in February 2005 the National Assembly resolved to set up a committee of inquiry into the murder.   Relying on Article 2 (right to life) of the Convention, the applicant complained that the security forces had failed to prevent his son’s murder in an extremely well-protected area and that the investigation into the murder had been inadequate. He also submitted that the shortcomings of the investigation had deprived him of an effective remedy, in breach of Article 13. Lastly, he alleged that the suffering caused by his son’s death amounted to a violation of Article 3 (prohibition of inhuman or degrading treatment).   Noting that there was no evidence on which it could be reasonably affirmed that Mustafa Güngör had been in real immediate mortal danger, the Court accordingly found that it was not necessary to examine whether the authorities should have taken specific measures to reduce such a risk and held unanimously that there had been no violation of Article 2 as regards the obligation to protect life.   As to the investigation, the Court noted that certain items of evidence – such as objects that were visible on a video recording made just after the crime was committed – had disappeared and were not among the exhibits in the case file. Moreover, discrepancies between the police officers’ reports and the reports of the experts appointed by the public prosecutor’s office regarding the nature of the objects concerned also went to show that the security forces had not done enough to preserve the evidence. Nor was there any evidence in the file to show that the investigators had taken reasonable steps to follow up lines of inquiry suggested to them by both private and official sources regarding the identity of the killers and the circumstances in which the crime had been committed.   Furthermore, although the investigators had considered it necessary to obtain statements from members of parliament living in the parliamentary quarter at the time of the murder and although there was no legal obstacle to prevent their doing so, they had not taken all the necessary statements. The judicial authorities’ failure efficiently to obtain all the statements necessary to solve the case and the superficial and summary nature of the statements obtained from certain members of parliament had prevented the main facts of the case being established.   Consequently, the Court held unanimously that there had been a violation of Article 2 as regards the manner in which the investigation was conducted.   The Court noted that, since the criminal investigation had not enabled the circumstances of the murder to be established or the killers to be identified, the applicant had not been able to use the remedies available to him under Turkish law to seek reparation. The Court therefore held unanimously that there had been a violation of Article 13.   Noting that the Turkish State was not responsible for the death of the applicant’s son and that there were no specific features of the criminal investigation that would justify finding a violation of Article 3 also, the Court held unanimously that there had been no violation of that provision.   The Court considered that Turkey must take appropriate measures without delay to discharge, in accordance with the Court’s judgment, its obligations to ensure that its legislation was clarified so that parliamentary immunity could no longer operate in practice to prevent prosecutions for ordinary criminal offences in cases in which members of parliament or their families were involved as possible witnesses or suspects. The Court 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. (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. [2] From 1 May 1993 when Poland recognised the right to individual petition.