CEDH · PRESS;GENERAL;ENG — 5 avril 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 } .sEB95B278 { width:124.14pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sE208486F { font-family:Arial; color:#ff0000 } .sA1D082BB { width:126.8pt; display:inline-block } .s527FFC79 { width:237.51pt; display:inline-block } .sBCA67308 { width:1.24pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sDE1F8FF9 { width:337.58pt; display:inline-block } .sB5916622 { width:122.11pt; display:inline-block } .s2E9B437C { width:27.22pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sF29C8316 { width:19.88pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .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 178 5.4.2005   Press release issued by the Registrar   Chamber judgments concerning Hungary, Romania, Russia, Turkey and   Ukraine   The European Court of Human Rights has today notified in writing the following seven Chamber judgments, none of which are final. [1]     Violation of Article 8 (by Romania) Violation of Article 6 § 1 (by Hungary) Monory v. Romania and Hungary (application no 71099/01)   The applicant, György Monory, is a Hungarian national, born in 1946 and living in Nagymores (Hungary).   In 1994 the applicant married Ms C.M., who is a national of both Romania and Hungary. On 16 February 1995 their daughter V. was born. The parents had joint custody of V., under Hungarian law, and lived in Nagymaros.   In December 1998 they visited Ms C.M.’s family in Romania. The applicant returned to Hungary, while C.M. stayed in Romania with V. and promised to return by 30   January   1999.   On 4 January 1999 C.M. filed for divorce, custody of V. and maintenance before Satu Mare District Court in Romania. On 17   January   1999, she informed the applicant by telephone that she had decided to live in Romania and would not allow him to take V. to Hungary.   On 8 October 2003, Satu Mare District Court established the residence of the child with her mother, pending the outcome of the divorce proceedings. It also granted the applicant the right to visit V.   In the meantime, on 20 January 1999 the applicant submitted a request for the return of his daughter to Hungary under Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction. He argued that V. was the victim of international kidnapping and had been retained in Romania unlawfully. On 2 February 2000 Oradea Court of Appeal dismissed the applicant’s appeal, considering that it was in the best interests of the child to remain with her mother.   In parallel, on 28 April 1999 the applicant filed for the custody of V. before Vác District Court in Hungary. On 29   October   2003 the court granted C.M. custody of V.   The applicant complained that the Romanian authorities failed to ensure the swift return of his daughter after his wife kept her in Romania without his consent. He also complained about the length of the divorce and child custody proceedings. He relied on Article 8 (right to respect for family life) of the European Convention on Human Rights, Article 13 (right to an effective remedy) of the Convention and Article 6 § 1 (right to a fair hearing within a reasonable time).   The European Court of Human Rights noted that the positive obligations imposed on States by Article 8 included taking measures to ensure a parent’s reunification with his or her child. The Court has already interpreted these positive obligations in the light of the Hague Convention. The same interpretation could be followed in the applicant’s case insofar as, at the material time, both Romania and Hungary were parties to the Hague Convention. The Romanian authorities should have taken measures to help prevent “further harm to the child or prejudice to the interested parties”. However, the authorities limited themselves to representing the applicant before the Romanian courts. The Court considered therefore that the authorities failed to observe their full obligations under Article 7 of the Hague Convention and that the domestic courts’ interpretation of the guarantees of the Hague Convention gave rise to a violation of Article 8.   Furthermore, such cases required urgent handling, as the passage of time could have irremediable consequences for the relations between the children and the parent who did not live with them. Indeed, Article 11 of the Hague Convention imposed a six-week time-limit for the required decision, failing which the decision body might be requested to give reasons for the delay.     Despite this recognised urgency, more than 12 months elapsed from the date on which the applicant lodged his request for the return of the child to that on which the final decision was taken. However, no satisfactory explanation was put forward by the Government for the delay.   The Court recalled that the interests of the child were paramount in such cases. Thus it might well have been justified, eight months after the removal from Hungary of the applicant’s daughter, for the courts to hold that the child had adapted to her new environment and that it was in her best interests to remain in Romania with her mother although, at that time, no final decision had established her residence there.     However, where the Court accepted that a change in the relevant facts might exceptionally justify such a decision, it had to be satisfied that the change was not brought about by the State’s actions or inaction. Having found that the time it took for the courts to adopt the final decision in the case failed to meet the urgency of the situation, the Court concluded that the change in the child’s circumstances was considerably influenced by the slow reaction of the authorities. The Court concluded that the Romanian authorities failed to make adequate and effective efforts to assist the applicant in his attempt to have his child returned to him with a view to exercising his parental rights. The Court therefore held, unanimously, that there had been a breach of Article 8 by Romania.   Given its finding under Article 8, the Court did not find it necessary to rule separately on the complaint raised under Article 13 concerning Romania.   Concerning Article 6 § 1, the Court observed that the proceedings started on 28   April   1999 and ended on 21 January 2004; a period of nearly four years and nine months. Having regard to its case-law on the subject, the Court considered that the overall length of the proceedings was excessive and failed to meet the “reasonable time” requirement. The Court therefore held, unanimously, that there had been a breach of Article 6 § 1 by Hungary. The Court further held, unanimously, that the Romanian Government was to pay the applicant 15,000 euros (EUR) for non-pecuniary damage and EUR 500 for costs and expenses and that the Hungarian Government was to pay the applicant EUR 3,000 for non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in English.)   Volokova v. Russia (no. 48758/99)   Violation of Article 6 § 1 The applicant, Lyubov Volkova, is a Russian national, born in 1947 and living in Volgograd (Russia).   The applicant complained under Article 6 § 1 (right to a fair hearing) that a judgment of 22   June 1999 ordering her local council to provide her with “comfortable” housing was quashed by way of supervisory review, and that the procedure was unfair.   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 in respect of the quashing of the final and binding judgment given in the applicant’s case and awarded the applicant EUR   3,000 for non-pecuniary damage and EUR 744 for costs and expenses. (The judgment is available only in English.)   Ali Hidir Polat v. Turkey (no. 61446/00)   Kimran v. Turkey (no. 61440/00)           Violation of Article 5 § 3 Ali Hidir Polat was born in 1960 and lives in Bursa (Turkey). Nabi Kimran was born in 1965 and lives in Istanbul. At the time their applications were lodged, the applicants, who are both Turkish nationals, were being held in Gebze Prison (Turkey).   Mr Polat and Mr Kimran had been arrested on 15 March and 9 September 1996 respectively in the course of police operations against the illegal armed organisation MLKP (Marxist-Leninist Communist Party). They were placed in pre-trial detention and criminal proceedings were brought against them for membership of an illegal organisation.   The applicants made several applications for release pending trial but Istanbul State Security Court decided to keep them in detention on the basis of the nature of the offences with which they had been charged and the state of the evidence. The Court finally released Mr Polat from remand on 4   June 2001 and Mr Kimran on 26 June 2001.   The criminal proceedings against Mr Polat are pending before the Turkish courts. Mr Kimran was sentenced to 18 years and nine months’ imprisonment on 31 January 2003 and the case is currently pending before the Court of Cassation.   In both cases the applicants complained of the excessive length of their pre-trial detention, namely five years and three months in Mr   Polat’s case and four years and nine months in Mr   Kimran’s case. They relied on Article 5 §   3 of the Convention (right to liberty and security).   The Court noted that the State Security Court had lawfully ruled that the applicants should be kept in detention on remand on the basis of grounds that were nearly always identical, not to mention stereotypical, namely, the nature of the offence involved and the state of the evidence. In the Kimran case it had also referred to the contents of the case file, the length of the detention, once to the relevant sentence and twice to the risks that the applicant would abscond. In the Court’s view, although “the state of the evidence” could be understood as indicating the existence and persistence of serious indications of guilt and, in general, those circumstances could be relevant factors, they could not on their own justify the continuation of the detention for such long periods. With regard to the risks that Mr   Kimran would abscond, the Turkish courts had not specified how such risks could persist after more than four years and nine months of detention.   In those circumstances the Court held unanimously in both these cases that there had been a violation of Article 5 § 3 of the Convention. It awarded Mr Polat EUR 4,000 and Mr Kimran EUR   3,500 for non-pecuniary damage and awarded them EUR 2,000 each for costs and expenses. (The judgments are available only in French.)     Violation of Article 3 Afanasayev v. Ukraine (no. 38722/02)   Violation of Article 13 The applicant, Aleksey Vladimirovich Afanasyev, is a Ukrainian national, born in 1964 and living in Kharkiv (Ukraine).   On 1 March 2000 the applicant was arrested on suspicion of swindling and taken to Kyivsky District Police Station.   According to the applicant, he was handcuffed in the police station and police officers coerced him to confess by beating him. One of the officers hit him on the left ear, causing swelling and partial deafness.   From 7   March to 5   April   2000 the applicant was examined by an expert, at the forensic medical examination department, who found that he had a damaged left ear, and bruises on his torso, face, left arm and left leg and that the injuries were sustained five to seven days earlier, dates which coincided with the applicant’s detention at Kyivsky District Police Station.   He made an unsuccessful request for criminal proceedings to be brought against the police officers whom he alleged to be responsible. The criminal investigation into the circumstances of the applicant’s beating is still pending, however.   The applicant complained that he was ill-treated in custody and that the State authorities failed to undertake a thorough and effective investigation into his allegations. He relied on Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right to an effective remedy). The European Court of Human Rights considered that the degree of bodily harm established by the medical examination of the applicant shortly after his release indicated that his injuries were sufficiently serious to amount to inhuman and degrading treatment within the scope of Article 3.   The Court noted that the materials in the case file confirmed that the applicant was the victim of violence during his detention. However, the applicant did not present any independent evidence capable of confirming his allegation that his injuries were caused by police officers. There were no witnesses to the incident. In the absence of any independent witness present during the alleged beatings, the Court believed that it was impossible to establish whether or not the applicant’s injuries were caused by the police as alleged.   The Court considered, however, that, viewed cumulatively, the medical evidence, the applicant’s testimony, the fact of his detention in the police station for three days and the lack of any plausible alternative explanation as to the origin of the applicant’s injuries, gave rise to a reasonable suspicion that those injuries might have been caused by the police.   The Court recalled that a State was responsible for the welfare of detainees and that the authorities had a duty to protect them. Bearing in mind the authorities’ obligation to account for injuries caused to those under their control, the Court considered that failure to find State agents guilty of a crime of violence against a detainee could not absolve the State of its responsibility.   Given the absence of any plausible explanation from the Ukrainian Government as to the origin of the applicant’s injuries, it had to be considered that the applicant sustained injuries as a result of the inhuman and degrading treatment for which the Government was responsible. The Court therefore held, unanimously, that there had been a breach of Article   3.   The Court considered that the applicant’s complaint concerning the lack of any effective investigation by the authorities into the cause of his injuries should be considered under Article 13.   The Court noted that, following the applicant’s complaint, the State authorities conducted a perfunctory investigation and only questioned the alleged offenders. They took the negation of the police officers at face-value and refused to institute criminal proceedings against them, despite the applicant’s statements and his undisputed bodily injuries. The criminal proceedings and the investigation into the applicant’s allegations commenced more than a year after the alleged events. Omissions at the initial stage of consideration of the applicant’s complaint substantially affected the subsequent course of the overall investigation. Many of the witnesses were only questioned after a significant lapse of time (May-November 2001) and could not testify clearly about events in March   2000. The Court further noted that on two occasions the domestic courts established that there had been serious omissions on the part of the authorities during the investigation: most of the witnesses were interrogated only after a lengthy delay, whereas several others were not interrogated at all. In the Court’s opinion those omissions, taken alone, provided a sufficient basis for the conclusion that the State authorities fell short of their obligations under Article 13.   The absence of any outcome for the main criminal proceedings also prevented the applicant from making a civil claim for compensation, which would not be examined prior to a final determination of the facts in pending criminal proceedings.The Court therefore held, unanimously, that there had been a violation of Article 13.   The Court awarded the applicant EUR 6,500 for non-pecuniary damage and EUR 1,500 (less EUR 890 awarded in legal aid by the Council of Europe) for costs and expenses. (The judgment is available only in English.) Violation Article 6 § 1 Katsyuk v. Ukraine (no. 58928/00)             Violation Article 1 of Protocol No. 1 The applicant, Vasiliy Ivanovich Katsyuk, is a Ukrainian national who was born in 1953 and lives in Shakhtarsk (Ukraine). The applicant complained under Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property) about the failure to enforce a judicial decision awarding him compensation for salary arrears.   The Court held that the alleged lack of resources of a state-owned company could not justify the substantial delay in compensating the applicant and held unanimously that there had been a violation of Article 6 § 1 and of Article 1 of Protocol No. 1. It awarded the applicant EUR 3,000 for the loss sustained and EUR 427 for costs and expenses. (The judgment is available only in French.)   Violation of Article 6 § 1 Varanitsa v. Ukraine (no. 14397/02)         Violation of Article 1 of Protocol No. 1 The applicant, Ivan Trofimovich Varanitsa, is a Ukrainian national, born in 1934 and living in Krasnoarmeysk in the Donetsk Region (Ukraine).   He complained, under Article   6 §   1 (right to a fair trial within a reasonable time) about the State authorities’ lengthy failure to execute a judgment of 19 January 2000 awarding him compensation for salary arrears. He also relied on Article 1 of Protocol No. 1 (protection of property).   Considering that there had been a substantial delay in paying the judgment debt to the applicant (three years and eight months) for which the Government had not advanced any satisfactory explanation, and which the alleged lack of funds of a State-owned enterprise could not justify, the Court held, unanimously, that there had been a violation of Article   6 §   1 and of Article   1 of Protocol   No.   1. The Court awarded the applicant EUR 761 for non-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.