CEDH · PRESS;GENERAL;ENG — 7 juin 2005

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s29100277 { font-family:Arial; font-weight:bold } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .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 } .s8517BF2E { width:24.76pt; display:inline-block } .s976DCF7A { width:146.83pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s8C054120 { width:136.13pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s5B3C5B5C { width:160.81pt; display:inline-block } .sF9FDB765 { width:100.81pt; display:inline-block } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD479557A { width:330.91pt; display:inline-block } .s50E127FF { width:141.45pt; display:inline-block } .sD472578 { width:317.57pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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   306 7.6.2005   Press release issued by the Registrar   Chamber judgments concerning the Czech Republic, Portugal, Turkey and   Ukraine   The European Court of Human Rights has today notified in writing the following seven Chamber judgments, of which only the friendly-settlement judgment is final. [1]     Chmelíř v. Czech Republic (application no. 64935/01)   Violation of Article 6 § 1 The applicant, Martin Chmelíř, is a Czech national who was born in 1973 and lives in Prague. Criminal proceedings had been brought against him in 1997. On 12 February 1998 he was arrested and placed in pre-trial detention. On 3 March 1999 he and two other co-defendants were found guilty of several charges, including robbery, trespass and the unlawful carrying of weapons; he was sentenced to eight years’ imprisonment. The applicant lodged an appeal.   R.T., one of the members of the High Court Division which was to examine the appeal, was withdrawn because he was acquainted with the family of one of the applicant’s co-defendants. However, he continued to deal with Mr Chmelíř’s case, which had been severed.    In December 1999, the applicant called for the withdrawal of M.V., presiding judge in the High Court Division, alleging that he had previously had an intimate relationship with him. On 15 February 2000 M.V. imposed a fine of 50,000   Czech korunas (about 1,674 euros (EUR)) on the applicant, on the ground that he had insulted the court through false allegations which represented an insolent and unprecedented attack on M.V. and were intended to delay the proceedings.     In the meantime, on 7 February 2000, the applicant brought an action for the protection of personality rights against M.V. for having obliged him to attend a hearing in spite of a bomb alert. The applicant’s request was dismissed. A second application by the applicant for M.V.’s withdrawal was subsequently dismissed by the Division on the ground that it amounted to provocative obstruction and a fresh attack on the judge’s moral integrity. Relying on Article 6 § 1 (right to an independent and impartial tribunal) of the European Convention on Human Rights, the applicant challenged the impartiality of the high court judges who had examined his appeal.   The European Court of Human Rights noted that when the applicant brought the action for the protection of personality rights against M.V. the criminal proceedings were pending before the high court on whose bench M.V. sat as presiding judge. Accordingly, the two sets of proceedings overlapped for almost seven months. For that reason, it could not be excluded that the applicant had reason to apprehend that he continued to be perceived as an opponent by M.V. In addition, when dismissing the second application for withdrawal, the court referred only to the content of that application, M.V.’s statement in reaction to the first application and the applicant’s previous attempts to frustrate the criminal proceedings. The judge concerned made no formal statement capable of dispelling any of the applicant’s doubts.   The applicant’s fears had been strengthened by M.V.’s decision to impose a fine. The Court recognised that domestic courts were entitled to impose disciplinary sanctions on litigants. In the present case, however, it noted that it was not the applicant’s conduct that had given rise to the penalty imposed, but the fact that he had insulted the court. While the insult in question resulted from an insolent and unprecedented attack on the presiding judge, the applicant’s conduct had been evaluated by the judge concerned in relation to his personal understanding, his feelings, his sense of dignity and his standards of behaviour, since he felt personally targeted and insulted. Thus, his own perception and evaluation of the facts and his own judgment had been involved in the procedure to determine whether the court had been insulted in that specific case.   In that connection, the Court also noted the severity of the penalty imposed, which consisted of the highest possible fine, and the warning given to the applicant to the effect that any similar attack in future was likely to be classified as a criminal offence. In the Court’s view, those elements testified to the judge’s exaggerated reaction to the applicant’s conduct.   In those circumstances, the Court considered that the applicant’s fear that M.V. lacked impartiality had been objectively justified. Having regard to that conclusion, it considered that it had dealt with all the complaints concerning the High Court’s impartiality and that it was not necessary to rule on an alleged lack of impartiality on the part of R.T.   Accordingly, the Court concluded unanimously that there had been a violation of Article 6 §   1 of the Convention. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR   1,000 for costs and expenses. (The judgment is available only in French.)   Violation of Article 1 of Protocol No. 1 Calheiros Lopes and Others v. Portugal (no. 69338/01)   The applicants, Rita Maria Calheiros Lopes, Alda Diniz Calheiros Lopes (who died in 2002), Maria Teresa Alves Diniz (who died in 2004), Manuel Joaquim Alves Diniz and Eugénia Maria Diniz Montera, are Portuguese nationals who were born in 1944, 1908, 1915 and 1943 respectively. They were living in Lisbon when their application was lodged. The European Court of Human Rights authorised Alda Diniz Calheiros Lopes’ heirs to continue the proceedings.   The applicants were shareholders in the company Companhia das Lezírias do Tejo e Sado S.A.R.L ., which was set up in 1974 and was then the largest agricultural company in Portugal. It was nationalised in 1975 under a legislative decree that provided for the payment of compensation to shareholders; the amount and arrangements of the compensation were to be defined at a later date. In 1993 the Minister of State for the Treasury fixed the amount of final compensation and government securities were made available to the applicants in 1994. The applicants challenged the amount of compensation before the Supreme Administrative Court, which dismissed their appeal in a judgment of 23 November 2000.   The applicants alleged that the tardy assessment and payment of the compensation awarded to them had amounted to a violation of Article 1 of Protocol No. 1 (protection of property) to the Convention and of Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy) and 17 (prohibition of abuse of rights) of the Convention.   The Court pointed out that it had already dealt with similar cases concerning the compensation policy for the nationalisations and expropriations which took place in Portugal in 1975. In all those cases, it had found a violation of Article 1 of Protocol No. 1, considering that the applicants had had to bear an individual and excessive burden which had upset the fair balance that ought to be struck between the requirements of the general interest and the protection of the right to the peaceful enjoyment of possessions.   In the present case, the Court noted that the government securities had not been made available to the applicants until 1994, or almost 19 years after the nationalisation process. In addition, they had been obliged to wait more than six years in order to learn the Supreme Administrative Court’s decision, following which the amount in question became final. In those circumstances the Court concluded unanimously that there had been a violation of Article 1 of Protocol No. 1.   As to the other complaints submitted under Article 6 § 1 and Articles 13 and 17 of the Convention, the Court considered that it was unnecessary to examine them separately.      Under Article 41 (just satisfaction), the Court awarded the applicants EUR 40,000 for pecuniary and non-pecuniary damage, to be distributed between them proportionately to the number of shares that they held, as well as EUR 8,000 for costs and expenses. (The judgment is available only in French.)   Real Alves v. Portugal (no. 19485/02)   Friendly settlement The applicant, Patrícia Raquel Real Alves, is a Portuguese national who was born in 1975 and lives in Queluz (Portugal). At the relevant time she was a student at the Lusíada University in Lisbon.   Following a dispute with several university employees while she was taking part in the distribution of leaflets, the applicant lodged a complaint; on 16 September 1997 she applied to intervene as an assistente in those proceedings. On 30 November 2001 a judge at the Lisbon Criminal Court ruled that the proceedings had lapsed.   Relying on Article 6 § 1 (right to a fair hearing in a reasonable time), the applicant complained about the length of the criminal proceedings in question.   The case has been struck out following a friendly settlement in which the applicant is to be paid EUR 4,500 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.) Violation of Article 3 Dalan v. Turkey (no. 38585/97)   Violation of Article 13 The applicant, Mesude Dalan, is a Turkish national who was born in 1974 and lives in Ankara.   The facts are disputed between the parties.   The applicant asserted that she had been arrested and taken to a police station on 5 August 1995 for having attempted to prevent an attack on two women by a group of men who turned out to be police officers. She alleged that after being taken into police custody she had been insulted, hung up by her wrists and beaten, to make her confess that she was a member of the DHKP/C (Revolutionary Front of the People’s Liberation Party). She had ended up signing a statement without knowing what it contained.   On 17 August 1995, when these interrogations ended, the applicant was examined by a forensic medical officer, who noted that there were numerous traces of violence on her person, including bruises up to 10 cm long on her shins and over her shoulder blades and breastbone, and that she had pains in both arms. She was then taken into pre-trial detention, was later released and was then acquitted on 5 December 1996.   The Turkish Government submitted that the applicant, like the other two women, was wanted for questioning by the Ankara security police and that she had been arrested during a police operation conducted against the DHKP/C, which was an armed organisation. Having resisted arrest, the three women had made it necessary for the police officers to use force.   The applicant lodged a complaint against the police officers in whose custody she had been detained. On 19 April 1996 the proceedings against the officers concerned were discontinued on the ground that the traces of injuries on the applicant’s person could have resulted from the resistance she had put up to the police officers when they tried to arrest her.   The applicant submitted that she had been tortured by the police while she was in their custody and complained that she had not had a remedy whereby she could have raised her allegations. She relied on Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 13 (right to an effective remedy).   The Court observed that, as it had said many times in the past, when a person was injured while deprived of his or her liberty and entirely in the charge of the police, any injury sustained during that period gave rise to strong presumptions of fact. The Government had submitted that in the present case the use of force had been made necessary by the applicant’s conduct at the time of her arrest. But if the arrest had indeed been carried out in such a way, the authorities had a duty to gather medical evidence immediately afterwards.   In any event, the number and severity of the injuries recorded on the applicant’s person, 12 days after her arrest, did not appear to correspond to the proportionate use of force by eight police officers in order to arrest three women, who could not have presented them with any particular threat. In those circumstances the Court held unanimously that there had been a violation of Article 3 of the Convention.   With regard to the investigation conducted in the case, the Court noted in the file certain deficiencies attributable only to the investigating authorities. The prosecutor handling the case had not taken any effective steps to identify the police officers concerned, although the applicant had made it quite clear that she was confident she would recognise them. Nor did he make any attempt to take evidence from those responsible for the applicant’s arrest and detention or from persons who had witnessed the arrest. In those circumstances the Court could not accept that an effective judicial investigation had been carried out in the applicant’s case. Considering that she had thus been deprived of other remedies which were theoretically open to her, such as an action for damages, the Court held unanimously that there had been a violation of Article 13 of the Convention.   By way of just satisfaction, the Court awarded the applicant EUR 8,000 for non-pecuniary damage and EUR 2,000 for costs and expenses, minus EUR 630 already received from the Council of Europe in legal aid. (The judgment is available only in French.)   Kılınç and Others v. Turkey (no. 40145/98)   Violation of Article 2 The applicants, Abdurrahman and   Memnune   Kılınç and Şule Özsoy, are Turkish nationals who were born in 1944, 1947 and 1967 respectively. At the time when the application was lodged, Mr and Mrs   Kılınç were living in Stuttgart (Germany) and Mrs Özsoy in Mersin (Turkey). The applicants are the parents and sister of Mustafa Canan Kılınç, a conscript who committed suicide in May 1995, while he was doing his compulsory military service.   Mustafa Canan Kılınç, who was suffering from an atypical depression diagnosed in 1992, was declared fit for military service in 1994. He received psychiatric treatment right from the start of his call-up to his training unit in November 1994. Noting that he suffered from “psychiatric disorders” and was “subject to nervous breakdowns”, the garrison commandant referred him for a medical examination at the Isparta military hospital. After that examination, on 22 February 1995, the doctors diagnosed anxiety disorders and prescribed medication and three days’ rest.   When Mr Kılınç’s health did not improve the commandant again asked for him to undergo a medical examination. He was placed under observation at the military hospital and given a neuro-psychiatric examination on 4 April 1995. That confirmed that he was suffering from anxiety disorders and he was prescribed one month’s rest, with the proviso that a medical examination be carried out at the end of that period.   When he was authorised to leave hospital Mr Kılınç travelled to his village instead of returning to garrison duty. Before his leave ended he was asked to attend a medical examination, but that was not possible because the military hospital to which he had been called did not have a psychiatric service. Instead of returning to his garrison as he had been requested Mr Kılınç first went back to his village.   The next day, 7 May 1995, the commandant reassigned Mr Kılınç to a conscript’s ordinary duties. On 15 May 1995, the last day of Ramadan, he was assigned to guard duty on the watchtower of the garrison prison and given a loaded Kalashnikov rifle for that purpose. At about 3.25 p.m. he used the rifle to kill himself with a bullet to the temple.   In the course of investigations into this suicide the commandant was charged but at the end of the proceedings he was acquitted on the ground that the elements of the offence of negligence had not all been made out. An action for damages brought by the applicants was dismissed on the ground that the incident complained of had been attributable to the victim alone, according to the administrative military courts.   The applicants alleged that the circumstances surrounding the suicide of their son and brother had breached Article 2 (right to life) and infringed their family rights, guaranteed by Article 8 (right to respect for family life).   The Court noted that Mr Kılınç’s psychiatric problems had been diagnosed well before he was called upon to do his military service. The Military Service Office had been in a position to establish whether he was fit for service on the basis of his previous history and the existing medical file. Moreover, his mental instability, which had been noted during the first aptitude tests, should normally have led to more thorough examinations rather than to a hasty call-up order. As the applicant had received psychiatric treatment right from the beginning of his service, the military authorities must have been aware of his alarming conduct by that time at the latest. However, in spite of these indications, Mr Kılınç had been posted to a gendarmerie garrison to serve as an ordinary soldier.   At certain times during his military service his behaviour had been apparently normal. However, on account of his known mental condition, his unstable conduct should have been taken seriously, since the risk that he might commit suicide could not be excluded, and indeed he had said as much to his fellow gendarmes.   That being so, the Court was convinced that the military authorities must have known that Mr   Kılınç might try to commit suicide. On the question whether the authorities had done everything in their power to prevent that risk materialising, the Court noted that Turkish legislation on conscription contained no clear provisions governing the supervision of those whose fitness to perform military service was in doubt or, more important still, the duties and responsibilities of superiors required to deal with the irregular situation of conscripts who, like Mr   Kılınç, were suffering from mental illness.   In the Court’s opinion, the regulatory context was therefore defective as regards the procedure to be followed by service doctors for establishing and monitoring Mr Kılınç’s mental fitness for service before and after his call-up. In addition, that situation had created uncertainty regarding the duties which could be assigned to him. It had thus played a decisive role in the causation of the incident, since the relevant authorities had not done everything in their power to protect Mr Kılınç against the danger that he presented to himself, which was as well known as it was avoidable. The Court accordingly held unanimously that there had been a violation of Article 2 and that it was not necessary to examine the case under Article 8.   By way of just satisfaction, the Court awarded the applicants EUR 4,000 for pecuniary damage, an aggregate sum of EUR 17,500 for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 10 Pamak v. Turkey (no. 39708/98)   Violation of Article 6 § 1 The applicant, Mehmet Pamak, is a Turkish national who was born in 1950 and lives in Ankara.   He is a journalist and the author of an article entitled “In its seventy-first year the regime is looking for extra support to keep it on its feet”, which was published in the weekly newspaper Selam in the issue of 31 October and 6   November 1994. The article criticised the Turkish Government’s policy for fighting terrorism and separatist movements.   The applicant was prosecuted for “inciting the people to hatred and hostility on the basis of a distinction founded on adherence to a religion” and committed for trial in the Istanbul National Security Court, which sentenced him on 1 November 1996 to one year and eight months’ imprisonment, among other penalties. An appeal on points of law by the applicant was dismissed on 6 March 1997.   The applicant submitted that his criminal conviction had infringed his right to freedom of expression and breached Article 10 of the Convention. In addition, relying on Article 6 (right to a fair trial), he complained that the proceedings had been unfair, submitting that the National Security Court which had tried and convicted him was not an independent and impartial tribunal on account of the fact that one of its members was a military judge.   The Court observed that it had already dealt with numerous similar cases in which it had found violations of Article 10. It considered that the reasons given by the domestic courts could not in themselves be considered sufficient justification for the interference with the applicant’s right to freedom of expression. Although certain parts of the article presented a negative view of the Turkish State’s policy, and gave the account a hostile ring, they did not constitute incitement to violence, armed resistance or rebellion, nor was it an instance of hate-speech, which in the Court’s view was the essential element to be taken into consideration. In those circumstances the Court considered that the applicant’s conviction had been disproportionate to the aims pursued and accordingly not “necessary in a democratic society”. There had therefore been a violation of Article 10.   The Court also held unanimously that there had been a violation of Article 6 §   1 as regards the complaint that the National Security Court was not independent and impartial. In respect of the other complaint about the unfairness of the proceedings, the Court reiterated that a court which had been shown to lack independence and impartiality could not in any event guarantee a fair trial to those under its jurisdiction and that it was accordingly not necessary to examine that point.   By way of just satisfaction the Court awarded the applicant EUR 5,000 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1   Violation of Article 13 Fuklev v. Ukraine (application no 71186/01) Violation of Article 1 of Protocol No. 1 The applicant, Petr Petrovich Fuklev, was born in 1935 and lives in Berdiansk. He is a former employee of a joint stock company, the Iskra Brick Factory (“the IBF”). He worked at the IBF from 1 December 1996 to 24 November 1997, when he was dismissed from his position as a senior engineer at his own request. At the time of his dismissal the applicant was not paid the wages owed to him.   In January 1998 the applicant brought proceedings against the IBF, seeking the recovery of salary arrears.     On 24 February 1998 Berdiansk City Court allowed the applicant’s claims and ordered the IBF to pay him 2,080.38 Ukrainian hryvnas   [2] .   The applicant complained about the State authorities’ failure to execute the judgment of 24 February 1998 in due time. He relied on Article 6 § 1 of the Convention (right to a fair hearing within a reasonable time), Article 13 (right to an effective remedy) and Article 1 of Protocol No. 1 (protection of property).   The European Court of Human Rights considered that the failure of the bailiffs to act for well over four years or to effectively control the enforcement proceedings in the applicant’s case was sufficient to conclude, unanimously,   that there had been a violation of Article 6 § 1.   The Court also concluded that the applicant did not have an effective domestic remedy, as required by Article 13, to redress or compensate him for the damage created by the delay attributable to the State bailiffs in the enforcement of the judgment. The Court therefore held, unanimously, that there had been a breach of Article 13.   The Court considered that the manner in which the enforcement proceedings were conducted, their total length and the uncertainty in which the applicant was left, upset the “fair balance” that had to be struck between the demands of the public interest and the need to protect the applicant’s right to the peaceful enjoyment of his possessions. Consequently, the Court held, unanimously, that there had been a violation of Article 1 of Protocol No. 1.   The Court awarded the applicant EUR 1,500 for damages, 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. [2] EUR 449.07.