CEDH · PRESS;GENERAL;ENG — 26 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 } .sB88298DC { width:86.11pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD599B024 { width:125.49pt; display:inline-block } .s5418B97B { width:144.79pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sD479557A { width:330.91pt; display:inline-block } .sDA358BA6 { width:130.81pt; display:inline-block } .sC41CA428 { width:319.58pt; display:inline-block } .sD43B7066 { width:140.83pt; display:inline-block } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s1A309D2E { width:64.82pt; display:inline-block } .s208B7B7B { width:145.21pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sE1E781D { width:141.47pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .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   228 26.4.2005   Press release issued by the Registrar   Chamber judgments concerning France, Poland, Turkey and   Ukraine   The European Court of Human Rights has today notified in writing the following nine Chamber judgments, none of which are final. [1]   Duveau and Others v. France (application no 77403/01)   Struck out The applicant, Joëlle Duveau, is a French national who was born in 1959.   She was prosecuted after killing one of her brothers in 1999. On 22 January 2001 she was found to have no case to answer as, at the material time, she had been suffering from a mental disorder that had impaired her discernment and caused her to act irrationally. The Prefect of the Bouches-du-Rhône département made an order the same day for her detention in hospital. She was allowed out for trial periods from February 2003 onwards. The hospital order was lifted on 30 September 2003.   The applicant complained under Article 5 § 4 (right to a speedy review of the lawfulness of detention) of the European Convention on Human Rights that the French courts had not given a decision “speedily” on the lawfulness of her confinement in a psychiatric unit.   In February 2005 the applicant’s representative informed the Court that the applicant wished to withdraw her application as she was satisfied with a statement by the French Government that they would be leaving the matter to the Court’s discretion.   The Court took formal note that the applicant had said that she was satisfied with the Government’s statement and did not intend to pursue her application. Noting that there were no special considerations relating to Convention rights that required it to proceed with the examination of the application, it decided unanimously to strike the case out of the list. (The judgment is available only in French).   Chodecki v. Poland (no. 49929/99)   Violation of Article 5 § 3 The applicant, Wiesław Chodecki, is a Polish national, born in 1955 and living in Sosnowiec (Poland).   On 13 June 1994 he was arrested and remanded in custody on suspicion of murdering his common-law wife. On 28 March 1996 he was convicted of murder. He appealed unsuccessfully.   The applicant complained that the length of his detention on remand was unreasonable, relying on Article 5 § 3 (right to be brought promptly before a judge) of the Convention.   The European Court of Human Rights found that the grounds given by the Polish courts in their decisions to prolong the applicant’s detention did not justify his being detained on remand for nearly three years and 11 months. The Court therefore held, unanimously, that there had been a violation of Article 5 § 3 and awarded the applicant EUR 1,000 for non-pecuniary damage. (The judgment is available only in English.)   Balçık v. Turkey (no. 63878/00)   Violation of Article 6 § 1 The applicant, Seyfettin Balçik, is a Turkish national who was born in 1957 and lives in Bursa (Turkey). He was arrested in March 1998 on suspicion of murder and of being a member of an illegal organisation, the PKK. Criminal proceedings were brought against him, following which he was sentenced to life imprisonment by Diyarbakır State Security Court.   The applicant complained under Article 6 (right to a fair hearing) that he had not had a fair trial, in particular because one of the judges who had sat in his case was a military judge.   As in a number of previous cases, the Court held unanimously that there had been a violation of Article 6 § 1 in that the State Security Court could not be considered to have been independent and impartial. As regards the applicant’s further complaint of procedural unfairness, the Court reiterated that a court whose lack of independence and impartiality had been established could not, in any circumstances, guarantee a fair trial to those under its jurisdiction. Accordingly, it was unnecessary to examine that complaint.   The Court held unanimously that the findings of a violation constituted in itself-sufficient just satisfaction for the applicant’s alleged non-pecuniary damage. (The judgment is available only in French).     Violation of Article 11 Democracy and Change Party and Others v. Turkey (nos. 39210/98 and 39974/98) The applicants are Fehmi Demir and Refik Karakoç, Turkish nationals who were born in 1957 and 1953 respectively and live in Ankara, and the Democracy and Change Party ( Demokrasi ve Değişim Partisi –   DDP), which was founded in 1995. At the material time Mr   Demir was the general secretary of the party and Mr Karakoç its chairman.   The DDP was founded on 3 April 1995. Following an application by the public prosecutor the DDP was dissolved by the Constitutional Court on 19 March 1996 on the grounds that, among other things, its programme was likely to undermine the territorial integrity of the State and the unity of the nation. The Constitutional Court found that behind the stated intention of promoting the development of the Kurdish language, the real aim of the DDP’s constitution was to create minorities to the detriment of territorial integrity and Turkish national unity, thereby encouraging separatism and the division of the Turkish nation.   The applicants complained that the dissolution of the DDP had infringed Articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 11 (freedom of assembly and association) and 14 (prohibition of discrimination).   The Court found that the dissolution of the DDP amounted to interference with the applicants’ right to freedom of association. That interference was prescribed by law and pursued a legitimate aim, namely the protection of territorial integrity.   The DDP had been dissolved purely on the basis of its programme, before it had had a chance to commence its activities. The Court noted that the relevant parts of the programme amounted to an analysis of the history and political aspects of the Kurdish question in Turkey and proposals aimed at bringing the oppression to an end and securing recognition for citizens of Kurdish origin of the rights contained in international treaties to which Turkey was a party. The Court accepted that the principles defended by the DDP were not, in themselves, contrary to the fundamental principles of democracy.   The Court further noted that the DDP’s programme did not advocate recourse to violence as a political weapon.   In the absence of a political programme liable to undermine democracy in the country and/or any invitation to use force for political ends or attempt to justify doing so, the dissolution of the DDP could not be reasonably considered as meeting a “pressing social need” and thus as being “necessary in a democratic society”.   The Court accordingly held unanimously that there had been a violation of Article 11 of the Convention. Since the complaints under Articles 9, 10 and 14 concerned the same issues as those that had been considered under Article 11, the Court held that it was unnecessary to examine them separately.   As the applicants had not made any claim for just satisfaction, the Court made no award for damage under Article 41. It awarded them EUR 4,316 jointly for costs and expenses. (The judgment is available only in French.)   Falakaoğlu v. Turkey (no. 77365/01)   Violation of Article 10 The applicant, Bülent Falakaoğlu, is a Turkish national who was born in 1974 and lives in Istanbul. At the material time he was the editor of the daily newspaper Yeni Evrensel .   He was charged with disseminating separatist propaganda on account of the publication in the 17 March 2000 edition of the newspaper of an article analysing events likely to occur during the Newroz festival (the celebration of spring and the New Year according to Kurdish and Iranian tradition). In the article the author took a critical look at the Kurdish question and painted a picture of Turkey at that time.   In a judgment of 3 October 2002 the Istanbul State Security Court found the applicant guilty of inciting the people to hatred on racial and regional grounds and gave him, in his capacity as editor, a two-year prison sentence that was subsequently converted into a fine of approximately 1,050 euros (EUR). The applicant appealed in vain to the Court of Cassation.   The applicant complained that the proceedings against him were unfair and that his criminal conviction had infringed his right to freedom of expression. He relied on Article 6 § 1 (right to a fair hearing) and Article 10 (freedom of expression).   The Court unanimously declared the complaint of a violation of the right to freedom of expression admissible and the remainder of the application inadmissible. It considered that the reasons relied on by the domestic courts could not be considered by themselves sufficient to justify the interference with the applicant’s right to freedom of expression. Although certain passages in the newspaper article had portrayed the Turkish authorities in power when the Newroz festival was celebrated at the beginning of the 1990s in a particularly negative light, it did not encourage the use of violence, armed resistance or insurrection and did not constitute hate speech. That was an essential factor in the Court’s view.   As in a number of previous similar cases, the Court held unanimously that there had been a violation of Article 10. The Court awarded the applicant EUR 1,000 for pecuniary damage, EUR 3,000 for non-pecuniary damage and EUR   1,500 for costs and expenses. (The judgment is available only in French.)     No violation of Article 3 Müslim v. Turkey (no. 53566/99)   No violation of Article 8 The applicant, Ahmad Hassan Müslim, is an Iraqi national of Turkmen origin who was born in 1973 and lives in Bilecik (Turkey).   In August 1998 the applicants and his cousin were involved in an altercation in the course of which Jasim Al-Tikriti, a powerful figure in the local branch of the Baath Party and an associate of Saddam Hussein, received gunshot wounds. The applicant was pursued by Iraqi secret service agents and fled to Turkey in September 1998.   He applied to the United Nations High Commission for Refugees and to the Turkish immigration authorities for refugee status. He argued, inter alia , that his cousin and his brother had been executed and that, owing to his origins, his life would be in danger if he returned to Iraq. However, he was not granted refugee status. The High Commission and the Bilecik Provincial Governor’s Office took the view that the applicant had failed to demonstrate that his fear of persecution in Iraq was based on one of the grounds set out in the 1951 Convention, namely race, religion, nationality, membership of a particular social group or political opinion. However, in February 2000, the applicant was granted “provisional refugee status”.   After the fall of Saddam Hussein’s government, the applicant asked for his application to be reconsidered on the grounds that the situation had become even more difficult for Turkmens since the fall of that regime owing to the lack of a legal system or government, particularly in the area where the applicant was born which was the scene of tribal conflict between Arabs, Kurds and Turkmens.   According to information provided by the Turkish authorities, the applicant is currently in possession of a resident permit that is valid until 1   May 2005 and no formal deportation order will be made against him.   The applicant submitted that his deportation to Iraq would place him at risk of being ill-treated, or even killed, by officials of the Baath party. He relied on Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading treatment). He further complained that he did not have an effective remedy in Turkey in relation to his application for refugee status and that this amounted to a violation of Article 13 (right to an effective remedy). Lastly, relying on Articles 3 and 8 (right to respect for private and family life), he complained of a lack of resources, which were insufficient to meet his needs.   The Court found on the basis of documents and reports by non-governmental and international organisations on the situation in Iraq that there were continuing security problems in the north of the country, which was the part of the country to which the applicant risked being sent. In the Mosul and Kirkuk regions in particular civilians remained at risk of being caught up in the quarrels between the Kurdish, Arab and Turkmen communities. However, the evidence furnished to the Court concerning the applicant’s past and the general context in Iraq did not in any way establish that the applicant’s personal situation might be worse than that of other members of the Turkmen minority, or even, perhaps of other inhabitants of northern Iraq, an area of the country that appeared to be less affected by violence than other parts of the country.   The Court reaffirmed that a mere possibility of ill-treatment as a result of temporary instability in the country did not in itself entail a breach of Article 3. That was particularly true of the case before it in view of the progress towards democracy that was being made in Iraq and the hope which that brought of an improvement in the situation. In that regard, it was noted that plans for the voluntary repatriation of Iraqi refugees was being prepared and would be implemented by the United Nations with the support of the Council of Europe. The Court noted in that connection that Turkey had undertaken not to forcibly deport Iraqi asylum seekers, such as the applicant, whose applications had failed.   The Court further noted that the applicant’s final request was pending before the High Commission and that the Turkish authorities had intervened so that progress towards a favourable outcome could be made without delay. There was nothing to suggest that that procedure could result in an expedited decision without a proper examination of any fresh submissions by the applicant. The applicant could not be summarily removed without a formal deportation order, against which there was a right of appeal. Beyond that, he could apply for judicial review by the administrative courts.   In those circumstances, the Court held unanimously that there would be no violation of Article 3 if the decision to deport the applicant to Iraq – should it be taken – was executed. In the light of that conclusion, it decided that it was unnecessary to examine the complaint under Article 2. Furthermore, since there had been no deportation order, the Court considered it unnecessary to rule on the complaint under Article 13.   Lastly, the Court reiterated that Article 8 did not go so far as to impose a general obligation on States to provide refugees with financial assistance to enable them to maintain a certain standard of living. In the case before the Court, the applicant did not appear to have been prevented from maintaining the standard of living which he himself had chosen on seeking refuge in Turkey and his situation did not appear to be so desperate as to force to leave Turkey because it was no longer tenable. Although difficult, it was undoubtedly no worse than that of any other citizen who was less well off than others. The Court accordingly held unanimously that there had been no violation of Articles 3 and 8 on that point. (The judgment is available only in French.)   Özdeş v. Turkey (no. 42752/98)   Violation of Article 1 of Protocol No. 1 The applicants, Mehmet Mithat Özdeş and Ahmet Müfit Özdeş, are Turkish nationals who were born in 1911 and 1947 respectively and live in Istanbul. They owned five plots of land which were expropriated in 1993 by the National Highways Authority.   The applicants complained under Article 1 of Protocol No. 1 (protection of property) of the delays in payment of the compensation awarded to them for the expropriation.   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 to the Convention. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants and awarded them jointly EUR 144,000 for pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in French.)   Parsıl v. Turkey (no. 39465/98)   Violation of Article 6 § 1 The applicant, Adem Parsıl, is a Turkish national, born in 1963 and living in Kahramanmaraş (Turkey).   On 29 July 1991, the applicant – a warden in charge of ticket sales at Ölüdeniz Natural Park – was placed in detention for selling tickets which had been fraudulently issued and crediting money to his account.       On 13 March 1996 he was ultimately found guilty of embezzlement, sentenced to seven years, nine months and ten days’ imprisonment, to a fine of 33,333,333 Turkish liras (TRL) (390   euros   (EUR)) and debarred from working in the civil service.     The judgment was upheld by the Court of Cassation.   The applicant complained, under Article 6 § 1 (right to a fair hearing), that the written observations of the principal public prosecutor at the Court of Cassation on the merits of his appeal were not served on him, depriving him of the opportunity to put forward his counter-arguments.   The European Court of Human Rights recalled that it had already examined the same grievance in the past and that it had found that there had been an infringement of the applicant’s right to adversarial proceedings, in violation of Article 6 § 1, having regard to the nature of the principal public prosecutor’s submissions and to the fact that the applicant was not given an opportunity to make written observations in reply. It further considered that to require an applicant’s lawyer to take the initiative and enquire periodically whether any new elements had been included in the case file amounted to imposing a disproportionate burden on her or him which would not necessarily have guaranteed a real opportunity to comment on the opinion.     In the applicant’ case, therefore, the Court also held, unanimously, that there had been a violation of Article 6 § 1 concerning the non-communication to the applicant of the principal public prosecutor’s observations before the Court of Cassation. The Court awarded the applicant EUR 1,000 for costs and expenses. (The judgment is available only in English.)   Sokur v. Ukraine (no. 29439/02)   Violation of Article 6 § 1 The applicant, Fedor Aleksandrovich Sokur, is a Ukrainian national, born in 1940 and living in Grodovka, the Donetsk region of Ukraine. The applicant complained about the non-execution of a judgment awarding him 7,406.21 Ukrainian hryvnas (around EUR 1,060) in salary arrears, with compensation for devaluation. He relied on Article 6 § 1 (right to a fair hearing).   The Court considered that, by delaying for nearly three years the enforcement of the judgment in the applicant’s case, the authorities deprived the provisions of Article   6   §   1 of much of their useful effect and that the Ukrainian Government had not advanced sufficient justification for the delay.   The Court therefore held, unanimously, that there had been a violation of Article 6 § 1 and awarded the applicant EUR 1,500 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.