CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 29 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 } .s546EB40A { width:73.44pt; display:inline-block } .s2B49DC01 { width:88.12pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A788C { width:146.16pt; display:inline-block } .s172596D7 { width:126.82pt; display:inline-block } .s68567FB2 { width:158.15pt; display:inline-block } .sD472578 { width:317.57pt; display:inline-block } .sD479557A { width:330.91pt; display:inline-block } .s2AADAFBE { width:153.49pt; display:inline-block } .s11D35F46 { width:157.48pt; display:inline-block } .s3DBB6109 { width:158.14pt; display:inline-block } .sF631E1D1 { width:166.8pt; display:inline-block } .s7E1107BE { width:4.15pt; 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 } .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   159 29.3.2005   Press release issued by the Registrar   Chamber judgments concerning France, Poland, San Marino, Slovakia and Turkey   The European Court of Human Rights has today notified in writing the following 11   Chamber judgments, of which only the friendly-settlement judgment is final. [1]   Guiraud v. France (application no 64174/00)   Violation of Article 6 § 1 The applicant, Antoine Giraud, is a French national who was born in 1942 and lives at Saint Ambroix (France).   He complained under Article 6 § 1 of the European Convention on Human Rights (right to a fair trial) of the length of criminal proceedings following his prosecution for the alleged mismanagement of a bank.   The Court noted that the proceedings had lasted almost ten years and three months for an investigation (which had taken more than six years and eight months) and three levels of jurisdiction. Having regard to the circumstances of the case, it found that that period did not comply with the “reasonable-time” requirement of Article 6 § 1 and held unanimously that there had been a violation of that provision.   Under Article 41 of the Convention (just satisfaction), it awarded the applicant 10,000 euros (EUR) for non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in French.)   Harizi v. France (no. 59480/00)   Violation of Article 6 §§ 1 and 3 (c) The applicant, Mohamed Harizi, is an Algerian national who was born in 1965 and lives at Tipaza (Algeria).   On 11 August 1997 a deportation order was made against him for repeated acts of violence and other offences. After he had refused to board a flight bound for Constantine, criminal proceedings were brought against him for illegally entering or staying in France and failing to comply with a deportation order. On 25 June 1998, while an appeal in those proceedings was still pending, he was deported to Algeria.   In a default judgment of 15 October 1999 the Paris Court of Appeal found the applicant guilty of failing to comply with a deportation order. It sentenced him to six months’ imprisonment and made an order excluding him from French territory for ten years.   The applicant complained under Article 6 §§ 1 and 3 (c) (right to a fair trial) that the criminal proceedings were unfair, in that he had been tried in his absence and his lawyer had not been permitted to represent him.   The Court noted that despite the efforts the applicant had made to attend the proceedings in the Court of Appeal, he had not being given a laissez passer allowing him to return to France. In addition, his lawyer had not been permitted to attend the hearing in his absence. The applicant had thus been deprived of all possibility of defending himself in the appeal proceedings, either on the issue of admissibility or on the merits.   The applicant had been prevented by the distance involved from obtaining adequate information about the proceedings being conducted in his absence and could not be considered to have been in a position to apply for an order setting aside the judgment, particularly as it was not served on him. In those circumstances, the Court held unanimously that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention and awarded the applicant EUR 7,337.49 for costs and expenses. (The judgment is available only in French.)   Matheron v. France (no. 57752/00)   Violation of Article 8 The applicant, Robert Matheron, is a French national who was born in 1949. He is currently in Salon de Provence Prison (France).   In 1993 criminal proceedings were instituted against him for international drug-trafficking. Evidence obtained from telephone tapping that had been used in proceedings against a co-defendant was also used against the applicant. The applicant argued that that evidence was inadmissible, but the indictment division ruled that it had no jurisdiction to verify whether evidence obtained from telephone tapping in separate proceedings had been properly communicated and recorded in writing.   On 6 October 1999 the Court of Cassation dismissed an appeal by the applicant, holding that the indictment division only had jurisdiction to determine the validity of the application to adduce the telephone records in evidence, but not to decide whether the telephone tapping was lawful.   On 23 June 2000 the applicant was sentenced to 15 years’ imprisonment.   He complained under Article 8 of the Convention (right to respect for his private life) that evidence had been used against him that had been obtained from telephone tapping in separate proceedings. Not being a party to those proceedings, he had been unable to contest their validity.   The main task of the Court was to ascertain whether an “effective control” had been available to the applicant to challenge the telephone tapping to which he had been made subject. It was clear that he had been unable to intervene in the proceedings in which the order to monitor telephone calls had been made. Furthermore, the Court of Cassation had ruled that in such cases the role of the indictment division was confined to checking whether the application to adduce evidence obtained from the telephone tapping had been made in the proper form. The Court reiterated that the 1991 Act regulating telephone tapping in France was consistent with the Convention. However, it said that the reasoning followed by the Court of Cassation could lead to decisions that would deprive a number of people, namely those against whom evidence obtained from telephone tapping in separate proceedings was used, of the protection afforded by the Act. That was what had happened in the case before the Court in which the applicant had not enjoyed the effective protection of the Act, which made no distinction on the basis of the proceedings in which the taped telephone conversations were used.   In those circumstances, the Court found that the applicant had not had access to “effective control” allowing him to contest the validity of the evidence obtained through telephone tapping. It accordingly held unanimously that there had been a violation of Article 8 of the Convention and awarded the applicant EUR 3,500 for non-pecuniary damage and EUR 5,500 for costs and expenses. (The judgment is available only in French.)   Sokołowski v. Poland (no. 75955/01)   Violation of Article 10 The applicant, Roman Sokołowski, is a Polish national who was born in 1950 and lives in Wodzisław.   In 1995 a local branch of the Christian-National Association published a political leaflet containing an article written by the applicant, which maintained that local councillors had elected themselves members of local election committees out of self interest. The article argued that membership of the election committees – a paid position – should have been assigned to local citizens with less money than the councillors. The money paid to committee members was then compared to the market value of various consumer goods. It was further suggested that the councillors, by receiving that money paid from local taxes, would effectively “take away” those goods from the readers of the article.   One of the commission members identified, J.K., brought criminal proceedings against the applicant. On 26 June 1996 the applicant was convicted of slander. The court found that the leaflet implied that J.K had intended to commit theft. The applicant was fined 1,000 Polish zlotys (PLN) and ordered to pay court costs. He subsequently appealed unsuccessfully. The applicant complained that his conviction was in breach of Article 10 (freedom of expression).   The European Court of Human Rights considered that the article in question did not amount to a gratuitous personal attack on J.K. There was no doubt that the leaflet concerned issues of public interest and concern, i.e. certain specific acts of the local municipal councillors carried out in the exercise of their public mandate. The article questioned whether it was appropriate at all that they should use their – paid – public office as an opportunity to enrich themselves by allocating themselves further, temporary but paid, functions in the public service.   In the Court’s opinion, those were important issues which might give rise to a serious public discussion concerning the rules of conduct applicable to elected representatives of the local community.   As to whether the article should be considered as a statement of fact or a value judgment, the Court noted that the gist of the applicant’s criticism, couched in ironical language, was that the criticised behaviour of the councillors was improper. Given the arguments contained in the article and its satirical nature, the Court considered that it was a value judgment and not a serious accusation of theft.   The Court further noted that the Polish courts did not provide an explanation as to why they did not accept that the applicant had been acting in the public interest or why he was considered to have acted in bad faith.   The Court noted that the assessment of the councillors’ conduct formulated by the applicant had a factual basis in that J.K. had put forward his candidature to the election committee and had been elected to it by other councillors. In addition, the domestic courts did not consider that this information disseminated by the applicant was untrue.   The Court was also of the view that the minor impact that the leaflet – of which only 150 copies were printed – could have had, should have been taken into account by the courts.      The reasons relied on by Poland were neither relevant nor sufficient to show that the interference complained of was “necessary in a democratic” society. The applicant had faced a harsh penalty; the fine of PLN 1000 was equivalent to the applicant’s monthly income and could have been replaced in default by three months and ten days’ imprisonment. The Court therefore held, unanimously, that there had been a violation of Article 10 and awarded the applicant EUR 700 for pecuniary damage and EUR 4,000 for non-pecuniary damage. (The judgment is available only in English.)   Szyszkowski v. San Marino (no. 76966/01)   Struck out The applicant, Marek Norbert Szyszkowski, is a Polish national who was born in 1977 and lives at Borgo Maggiore (San Marino).   On 7 August 2000 the San Marinese gendarmerie ordered Mr Szyszkowski to leave the Republic’s territory immediately and not to return, on the ground that he had been involved in a pub brawl and had allegedly been drunk and aggressive on several previous occasions. On the same date, the Aliens Department revoked his short-term seasonal residence permit.   In April 2002 Mr Szyszkowski was convicted of violating the prohibition on returning to the Republic of San Marino without prior authorisation, since the police had stopped him and checked his papers within the national territory. However, the applicant was acquitted by the appellate court in January 2004.   Relying on Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens) to the Convention, the applicant claimed that the decision by the gendarmerie to deport him from San Marino had been unlawful and that he had not been allowed to make representations in person either before or after his deportation.   The Court noted that, on 20 December 2004, the applicant had been awarded an ordinary residence permit, which gave him greater rights than a mere seasonal permit: not only could he travel freely around the State’s territory and live where he chose, but he could also obtain residence status in five years’ time. Further, the San Marinese Government had offered to make him an ex gratia payment of EUR 4,000, which the applicant’s counsel had refused, alleging that his client had incurred considerable costs and fees. However, he provided no substantiation of that claim.   In those circumstances, and having regard to the nature of the complaint, the Court considered that continued examination of this application could no longer be justified, and it decided unanimously to strike the application out of the list. (The judgment is available only in French).     Violation of Article 6 § 1 Macková v. Slovakia (51543/99) Violation of Article 13 in conjunction with Article 6 § 1 The applicant, Zora Macková, is a Slovakian national who was born in 1923 and lives in Liptovský Mikuláš.   The case concerned the length of proceedings brought by the applicant to recover her father’s house which had been expropriated in the late 1940s or early 1950s. She lodged her request for restitution of the property in January 1991. The relevant legal proceedings, including enforcement issues, were not completed until 2001.     The applicant claimed that the length of the proceedings (which lasted some nine years and two months) was incompatible with the “reasonable time” requirement provided in Article 6 § 1. She also relied on Article 13 (right to an effective remedy).   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 and Article 13 and awarded the applicant EUR 4,500 for non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in English.)     Violation of Article 10 Ağın v. Turkey (no. 46069/99)   Violation of Article 6 § 1 The applicant, Ömer Ağin, is a Turkish national who was born in 1948 and lives in Istanbul.   On 11 March 1993 the applicant was sentenced, inter alia , to one year and eight months’ imprisonment for conducting propaganda against the integrity of the State on the occasion of a round table organised by the Demokrat magazine, which published the proceedings of that meeting. The article analysed the Kurdish question in the geopolitical context of the Middle East, and criticised the Government’s policy towards people of Kurdish origin.   On 8 March 1996 the Istanbul State Security Court reduced the applicant’s sentence to one year, one month and ten days’ imprisonment.   Relying on Article 10 (freedom of expression), the applicant complained that his conviction and sentence had infringed his right to freedom of expression. In addition, relying on Article 6 § 1 (right to a fair hearing), he complained of procedural unfairness. Finally, he alleged he had been discriminated against on grounds of ethnic origin, in breach of Article 14 (prohibition of discrimination).   The Court considered that the reasoning of the domestic courts could not in itself be considered sufficient to justify the interference in the applicant’s right to freedom of expression. While certain passages in the article concerned painted an unflattering picture of the Turkish State’s policies with regard to its citizens of Kurdish origin, they did not encourage the use of violence, armed resistance or insurrection, nor did they amount to hate speech. In the Court’s view, that was an essential factor to be taken into consideration. It found that the applicant’s sentence was disproportionate to the aims pursued and accordingly not “necessary in a democratic society”. There had thus been a violation of Article 10.   In addition, the Court pointed out that where civilians were tried for offences punishable under the Criminal Code before a State Security Court that included a military judge, they had a legitimate reason to fear that the court which tried them lacked independence and impartiality. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 on account of the State Security Court’s lack of independence and impartiality.   Having regard to its findings, the Court did not consider it necessary to examine the complaint submitted under Article 14 of the Convention, taken in conjunction with Article 10.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 4,000 for pecuniary damage, EUR 15,000 for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.)   Alınak v. Turkey (no. 40287/98)   Violation of Article 10 The applicant, Mahmut Alınak, is a Turkish national who was born in 1952 and lives in Ankara. He wrote a novel based on real events which took place in Ormaniçi village in the province of Şırnak.   The book was published in September 1997 and, in October 1997, the public prosecutor at Istanbul State Security Court applied for the seizure of copies of the book, claiming that the content of the book incited hatred and hostility by making distinctions between Turkish citizens on the basis of their ethnic or regional identity. The applicant appealed against the seizure order. He mistakenly gave an incorrect case number on his appeal, and as a result, it appeared that the appeal court examined the facts of another case. The applicant’s appeal was dismissed and the public prosecutor brought criminal proceedings against him under the Prevention of Terrorism Act 1991. In September 1999, Istanbul State Security Court stayed the proceedings against the applicant. However, the court did not determine the applicant’s request to annul the interim seizure order concerning his book.   The applicant complained that the seizure order was in violation of Article 10 (freedom of expression).   The Court observed that the book in question was a fictional novel inspired by real events. It did not give a neutral account of the events. The plot of the book concentrated on the ill-treatment to which the villagers were subjected at the hands of security force officials and the villagers’ unsuccessful attempts to have them punished. Having examined the whole book, the Court found no reference to the real name or rank of any official.   The Court noted that the book contained graphic details of fictional ill-treatment and atrocities committed against villagers, which no doubt created in the mind of the reader a powerful hostility towards the injustice to which the villagers were subjected in the tale. Taken literally, certain passages might be construed as inciting readers to hatred, revolt and the use of violence. In deciding whether they in fact did so, it had to be borne in mind that the medium used by the applicant was a novel, a form of artistic expression that appealed to a relatively narrow public compared to, for example, the mass media.   The Court recalled that Article 10 protected freedom of artistic expression. Those who created, performed, distributed or exhibited works of art contributed to the exchange of ideas and opinions, which was essential for a democratic society. The State was therefore obliged not to encroach unduly on the author’s freedom of expression.   As to the tone of the book, Article 10 protected not only the substance of the ideas and information expressed, but also the form in which they were conveyed. The book concerned was a novel classified as fiction, albeit purportedly based on real events.   The Court took into account the problems linked to the prevention of terrorism and the Turkish authorities’ concern about the dissemination of views which they considered might exacerbate the serious disturbances that had been going on in Turkey for some 15 years. However, the applicant, although a former Member of Parliament, was at the material time a private citizen expressing his views in a novel which would reach only a small audience, which limited its potential impact on “public order” to a substantial degree. Thus, even though some of the passages from the book seemed very hostile in tone, the Court considered that their artistic nature and limited impact reduced them to an expression of deep distress in the face of tragic events, rather than a call to violence.   The Court also took into account the fact that the applicant’s appeal was not properly dealt with, given the confusion with another case and that no decision was taken in respect of the seizure order during the criminal proceedings brought against the applicant, leaving him in uncertainty as to the future of his book.   The Court concluded that the order to seize the applicant’s book was disproportionate to the aims pursued and accordingly not “necessary in a democratic society”. The Court therefore held, unanimously, that there had been a violation of Article 10. The applicant was invited to submit his claims for just satisfaction, but did not do so within the required time-limits. Accordingly, the Court makes no award under Article 41. (The judgment is available only in English.)   Ege v. Turkey (no. 47117/99)   Violation of Article 6 § 1 The applicant, Mehmet Ali Ege, is a Turkish national who was born in 1959 and lives in Mardin.   On 19 February 1985 he was convicted of membership of an illegal organisation by Diyarbakır Martial Law Court together with 623 other suspects and sentenced to 24 years’ imprisonment. In April 1990, the Military Court of Cassation quashed the judgment on the ground that the latter had misinterpreted domestic law. The applicant was released from detention in July 1990 and the proceedings were terminated on 13 July 1998.   The applicant relied on Article 6 § 1 (right to a fair trial within a reasonable time) concerning the length of the proceedings, which lasted 17 years, nine months and 14 days, of which 11 years, five months and 16 days came with the scope of the Court’s consideration.   The European Court of Human Rights 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.)   Keskin v. Turkey (no. 40156/98)   Friendly settlement The applicant, Mahmut Keskin, is a Turkish national who was born in 1956. He was living in Turkey at the material time, but now lives in Kyiv (Ukraine).   On 13 November 1980 the applicant was arrested on suspicion of belonging to the illegal organisation Dev-Yol. He was placed in police custody, and subsequently remanded in custody pending trial. In 1988 he was convicted and sentenced to 15 years’ imprisonment, but the conviction was quashed in July 1995. The case was referred to Ankara Assize Court, which held on 24 June 1997 that the criminal proceedings were time-barred.   Relying on Article 6   § 1 (right to a fair hearing within a reasonable time), the applicant complained of the length of the criminal proceedings that had been brought against him for his alleged membership of an illegal armed organisation.     The case has been struck out of the list following a friendly settlement under which the applicant should receive EUR 17,000. (The judgment is available only in French.)   Kokol and Others v. Turkey (no.68136/01)   Violation of Article 1 of Protocol No. 1 The applicants are eight Turkish nationals who owned four plots of land in Ankara.   In 1991 the State body responsible for motorway construction expropriated the applicants’ land in order to build Ankara Central Motorway. A committee of experts assessed the value of the land and the sum fixed was paid to them when the expropriation took place. In February 1995 Ankara Civil Court of First Instance awarded the applicants additional compensation plus interest, which they received in March 1998.   The applicants complained, under Article 1 of Protocol No. 1 (protection of property), that the additional compensation for expropriation, which they obtained only after four years and 11 months of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey.   The European Court of Human Rights found that, as a result of the delay in paying the compensation, the low interest rates and the length of the proceedings as a whole, the applicants had had to bear an individual and excessive burden that had upset the fair balance that had to be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.     The Court therefore held, unanimously, that there had been a violation of Article 1 of Protocol No. 1 and awarded the applicants, jointly, EUR   49,305 for pecuniary damage and EUR 1,000 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. [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.