CEDH · PRESS;GENERAL;ENG — 15 juillet 2005

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[1]   Repetitive cases (in which the Court has reached the same findings as in similar cases raising the same issues under the European Convention on Human Rights) can be found at the end of this press release.   Leroy v. Belgium (no. 52098/99)   Violation of Article 6 § 1 The applicant, Anne-Marie Leroy, is a 52-year-old Belgian national who lives in Ittre (Belgium).   She complained under Article 6 § 1 of the Convention (right to a fair trial within a reasonable time) of the length of proceedings that had been brought against her for alleged tax evasion.   The Court noted that the proceedings started on 22 November 1989, when the applicant’s home was searched, and that civil proceedings were still pending. The proceedings had thus taken more than 15 years and six months to date. It found that period excessive in the circumstances of the case and accordingly held unanimously that there had been a breach of the “reasonable-time” requirement of Article 6 § 1.   The Court awarded the applicant 11,000 euros (EUR) for non-pecuniary damage and EUR 5,000 for costs and expenses. (The judgment is available only in French).     Violations of Article 5 § 3   Violation of Article 5 §§ 1 and 4 Asenov v. Bulgaria (application no 42026/98)   Violation of Article 6 § 1 The applicant, Traicho Assenov, is a 35 year old Bulgarian national who lives in Sofia.   On 22 December 1994 he was charged with conspiring to break into premises belonging to the water board to steal tools and machinery. He was detained pending trial on the order of an investigating officer.   A series of bail applications made by the applicant were dismissed under Article 152 § 3 of the Code of Criminal Procedure on the ground that his detention was mandatory, as other criminal proceedings were pending against him. Those proceedings, which concerned an alleged theft of foodstuffs, had begun on 6 July 1992 and ended with the charges against the applicant being dropped. However, he was not informed of this until 20 July 1998.   In September 1997 Sofia District Court granted the applicant bail conditional on his providing security in the sum of 100,000 levs (the equivalent of EUR 49.50). However, he failed to pay the sum and remained in custody. Subsequently, the district court twice refused to hear further applications for his release, on the grounds that, although he remained in custody, technically he was no longer in detention pending trial but under an obligation to pay the security.   On 9 February 1998 Sofia District Court ordered the applicant’s release under supervision. However, the prison authorities were unable to release him as the file reference was incorrect. On 9 April 1998 the district court sentenced the applicant to a year’s imprisonment. He was released on 13 April 1998. On 22 February 1999 he was acquitted on appeal, on the grounds that there had been insufficient evidence to convict him.   The applicant complained of a violation of Article 5 §§ 1, 3 and 4 (right to liberty and security) on the grounds that he had not been brought promptly before a judge and that the length of his detention pending trial had been unreasonable. He also complained that he had been deprived of a remedy to have the lawfulness of his detention decided and that he had not been released on 9 February 1998. Lastly, he complained under Article 6 § 1 (right to a fair trial within a reasonable time) of the length of the proceedings.   The Court noted that it had previously found, in cases concerning the system of pre-trial detention that had existed in Bulgaria until 1 January 2000, that investigating officers and public prosecutors could not be considered sufficiently independent and impartial for the purposes of Article 5 § 3 of the Convention to order or approve pre-trial detention. It therefore held unanimously that there had been a violation of Article 5 § 3 as regards the applicant’s right to be brought before a judge or other officer authorised by law to exercise judicial power.   The Court further noted that the applicant had remained in detention pending trial for three years, one month and 18 days. Since the national authorities had failed to give relevant and adequate reasons to justify detention for such a lengthy period, the Court held unanimously that there had also been a violation of Article 5 § 3 on that account.   The Court noted that the district court had twice refused to hear applications by the applicant for his release on the ground that, although he remained in custody, technically he was no longer in detention pending trial but under an obligation to pay a sum of money. It found that this had deprived the applicant of the right to have the lawfulness of his detention decided and held unanimously that there had been a violation of Article 5 § 4.   Further, although the district court had ordered the applicant’s release on 9 February 1998, he had remained in custody for a further 63 days until 13 April 1998. The Court found that there could be no justification for the delay and held unanimously that there had been a violation of Article 5 § 1.   Lastly, as regards the length of the two sets of proceedings, the Court noted that the first had taken four years and two months and the second two years and ten months. Finding that those periods were excessive in the circumstances of the case, the Court held unanimously that there had been a breach of the “reasonable-time” requirement of Article 6 § 1 in both sets of proceedings.   The Court awarded Mr Assenov EUR 7,000 for non-pecuniary damage and EUR 2,500 for costs and expenses. (The judgment is available only in French.)   Mežnarić v. Croatia (no. 71615/01)   Violation of Article 6 § 1 The applicant, Ivan Mežnarić, is a Croatian national who was born in 1954 and lives in Zagreb.   On 10 July 1991 an action was brought against Mr Mežnarić for breach of contract before Zagreb Municipal Court ( Općinski sud u Zagrebu ). The plaintiffs were represented by their legal counsel, M.V., for a period of two months, beginning on 27 November 1991. M.V.’s daughter, who had taken over her father’s law practice, replaced her father as the plaintiffs’ counsel in a hearing held on 27 January 1992. The Croatian courts found in favour of the plaintiffs.   Mr Mežnarić filed a constitutional complaint, which was dismissed on 18 December 2000 by the Constitutional Court ( Ustavni sud Republike Hrvatske ). When he received the court’s decision, Mr   Mežnarić noticed that Judge M.V. was a member of the panel of five judges which delivered that decision.   Mr Mežnarić complained that he did not have a fair hearing before an impartial tribunal because his constitutional complaint was decided by a panel of judges which included a judge who had represented his opponents at an earlier stage in the proceedings. He relied on Article 6 § 1 (right to a fair hearing).   The European Court of Human Rights noted that the case concerned the dual role of a judge in a single set of proceedings, given that Judge M.V. had previously represented the applicant’s opponents.   That fact, reinforced by the involvement of Judge M.V.’s daughter who had also represented the applicant’s opponents, created, in the Court’s view, a situation which was capable of raising legitimate doubts as to Judge M.V.’s impartiality.   The Court therefore held unanimously that there had been a violation of Article   6   § 1 in that the applicant had not had a fair hearing before an impartial tribunal.   The Court also found 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   1,165 for costs and expenses. (The judgment is available only in English.)     Violation of Article 1 of Protocol No. 1   Violation of Article 6 § 1 Nastou v. Greece (No. 2) (no. 16163/02)   Violation of Article 13 The seven applicants, Maria Nastou, Alexandra Nastou, Styliani Al. Nastou, Constantina Al. Nastou, Heleni Nastou, Styliani I. Nastou and Constantinos Nastos, are Greek nationals.   The case concerned a dispute over land known as the “Karras estate” in a suburb of Athens. In 1985 the State took possession of a substantial part of the estate under “occupation agreements” (πρωτόκολλα κατάληψης) issued on the basis of an inventory of State property commissioned by the Ministry of Finance.   The applicants, who claimed ownership of part of the land, sought a declaration in the courts that they had title. The proceedings are still pending. Some of the applicants also brought an action in damages against the State for unlawful possession, but the action was stayed pending the outcome of the application for a declaration.   The applicants complained under Article 1 of Protocol No. 1 (protection of property) that the State had taken possession of the land without a prior court order or the payment of any compensation. They also complained under Article 6 § 1 (right to a fair hearing within a reasonable time) of the length of the proceedings and Article 13 (right to an effective remedy) of the lack of an effective remedy in Greek law for the delays.   The Court noted that by contesting the applicants’ title to the land, the State had for 20 years managed to avoid making any payment for the pecuniary and non-pecuniary damage the applicants had suffered as a result of being deprived of their property without compensation since 1985. The Court therefore found that there had been a failure to strike a fair balance between the protection of the right of property and the requirements of the general interest and held unanimously that there had been a violation of Article 1 Protocol No. 1.   The proceedings had been continuing for more than 19 years. The Court found that period excessive in the circumstances of the case and accordingly held unanimously that there had been a breach of the “reasonable-time” requirement of Article 6 § 1.   Lastly, the Court held unanimously that there had been a violation of Article 13 owing to the lack of a remedy in Greek law to enable the applicants to assert their right to a hearing within a reasonable time, within the meaning of Article 6 § 1.   The Court found that the question of just satisfaction was not ready for decision and so reserved it. (The judgment is available only in French.)   Capone v. Italy (no. 62592/00)   Violation of Article 1 of Protocol No. 1 The applicant, Claudina Capone, is an Italian national who was born in 1925 and lives in Benevento, where she owned a plot of building land. The authorities took possession of part of the land in 1992 and expropriated it in 1997. The compensation proceedings instituted by the applicant are still pending in the Italian courts.   The applicant complained that her right to the peaceful enjoyment of her possessions had been infringed as a result of the lack of compensation for the expropriation of her land. She relied on Article 1 of Protocol No. 1 (protection of property).   The Court noted that 13 years had already passed without a final award of compensation being made to the applicant for the expropriation of her land. That delay, which was a factor likely to reduce the value of the compensation, was indisputably attributable to the State and could not be justified. The Court also took into account the applicant’s continuing state of uncertainty, in view of the lack of final compensation and the fact that the proceedings in the domestic courts were still pending.   Having regard to the circumstances of the case, the Court considered that the applicant had already had to bear an individual and excessive burden which had upset the fair balance that should be struck between the requirements of the general interest and the protection of the right to the peaceful enjoyment of possessions. It therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1. It further considered that the question of just satisfaction was not ready for decision and accordingly reserved it in whole. (The judgment is available only in French.)   Violation of Article 1 of Protocol No. 1 Carletta v. Italy (no. 63861/00) Colacrai v. Italy (no. 63868/00) Donati v. Italy (no. 63242/00) La Rosa and Alba v. Italy (No. 6) and (No. 8) (nos. 63240/00 and 63285/00) Pietro Romolo Carletta, Rocco Colacrai, Enrico Donati, Maurizio Donati and Angelo Donati are Italian nationals who were born in 1934, 1932, 1941, 1945 and 1948 respectively and live in Benevento (Italy), with the exception of Maurizio and Angelo Donati, who live in Rome.   Mario La Rosa, Giacomo La Rosa, Vincenzo Alba, Maria La Rosa and Vincenzo La Rosa are Italian nationals who were born in 1925, 1927, 1922, 1945 and 1920 respectively and live in Caltagirone (Italy). Following the death of Vincenzo La Rosa in 2005, the Court gave his heir leave to continue the proceedings before it on his behalf.   In all five cases the authorities took possession of land owned by the applicants with a view to its expropriation and started carrying out building work on it. In the absence of formal expropriation and compensation, the applicants brought actions in damages for the unlawful possession of their land. In some cases the proceedings are still pending in the Italian courts.   The applicants complained that the occupation of their land had infringed their right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1 (protection of property) to the Convention.   The Court considered that the loss of all ability to dispose of the land in question, coupled with the impossibility of remedying that situation, amounted to a de facto expropriation incompatible with the applicants’ right to the peaceful enjoyment of their possessions. It therefore held unanimously in all five cases that there had been a violation of Article 1 of Protocol No. 1. The Court considered that the question of the application of Article 41 (just satisfaction) was not ready for decision and so reserved it. (The judgments are available only in French.)   Repetitive cases   In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention.   Violation of Article 1 of Protocol No. 1 In the following seven cases the applicants complained of delays in the payment of compensation owed to them for the expropriation of their property. They further alleged that the sums they had received did not take into account the true rate of inflation between the time when the amounts had been determined and the date of payment. They relied on Article 1 of Protocol No. 1 (protection of property). In addition, with the exception of Mr Kahveci , the applicants relied on Article 6 § 1 (right to a fair hearing within a reasonable time).   Cafer Kaplan v. Turkey (no. 6759/03) Kahveci v. Turkey (no. 853/03) Kurucu v. Turkey (no. 28174/02) Salih Kaplan v. Turkey (no. 6071/03) Salih Kaplan v. Turkey (No. 2) (no. 6073/03) Yilmaz and Gümüş v. Turkey (no. 28167/02) Zeynep Şahin v. Turkey (no. 2203/03) The applicants, Cafer Kaplan, Orhan Kahveci, Mehmet Kurucu, Salih Kaplan, Bekir Yilmaz, Emine Gümüş and Zeynep Şahin, are Turkish nationals who were born in 1928, 1952, 1944, 1945, 1932, 1933 and 1946 respectively. They all live in Turkey: Cafer Kaplan, Salih Kaplan and Zeynep Şahin in Gaziantep, Orhan Kahveci in Yalova, and Mehmet Kurucu, Bekir Yilmaz and Emine Gümüş in Birecik.   In each case the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 (protection of property) and that it was not necessary to examine separately the complaint under Article 6 § 1. 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 the following overall amounts, in euros, for pecuniary damage and costs and expenses. (The judgments are available only in French.)       Pecuniary damage Costs and expenses Cafer Kaplan v. Turkey (no. 6759/03) 16,000 - Kahveci v. Turkey (no. 853/03) 5,600 500 Kurucu v. Turkey (no. 28174/02) 7,360 500 Salih Kaplan v. Turkey (no. 6071/03) 4,630 - Salih Kaplan v. Turkey (No. 2) (no. 6073/03) 15,270 - Yilmaz and Gümüş v. Turkey (no. 28167/02) 1,745 500 Zeynep Şahin v. Turkey (no. 2203/03) 3,220 -     Violation of Article 6 § 1 In the following six Turkish cases the applicants were tried by a State security court and given prison sentences for being members of, or having assisted, illegal armed organisations. Relying on Article 6 § 1 (right to a fair trial), they complained that they had not been tried by an independent and impartial tribunal, as a military judge had sat as a member of the State security court.   The applicants also complained, with the exception of those in the cases of Keçeci v. Turkey and Mehmet Çelik v. Turkey , that the proceedings that had resulted in their conviction had been unfair and that there had been various other violations of Article 6. In the cases of Çaplık v. Turkey , Feyyaz Yılmaz v. Turkey and Mehmet Çelik v. Turkey the applicants further claimed to be victims of a violation of Article 14 (prohibition of discrimination). Lastly, in the cases of Çaplık v. Turkey , Keçeci v. Turkey and Yeşiltaş and Kaya v. Turkey the applicants complained of the length of the proceedings against them (four years and seven months, six years and two months, and four years and ten months respectively).   Aslan v. Turkey (no. 59237/00) Çaplık v. Turkey (no. 57019/00) Feyyaz Yılmaz v. Turkey (no. 62319/00) Keçeci v. Turkey (nos. 52701/99 and 53486/99) Mehmet Çelik v. Turkey (no. 61650/00) Yeşiltaş and Kaya v. Turkey (no. 52162/99) The applicants, Mehmet Salih Aslan, Hatip Çaplık, Feyyaz Yılmaz, Bekir Sıtkı Keçeci, Mehmet Çelik, Hüseyin Yeşiltaş and Zeki Kaya, are Turkish nationals who were born in 1959, 1961, 1982, 1959, 1966, 1956 and 1967 respectively.   When the application was lodged, Mehmet Salih Aslan was detained in Kızıltepe Prison (Turkey). The other applicants all live in Turkey: Hatip Çaplık in Adana, Feyyaz Yılmaz and Hüseyin Yeşiltaş in İzmir, Bekir Sıtkı Keçeci in Gebze, Mehmet Çelik in Mardin and Zeki Kaya in Balıkesir.   The Court reiterated that that civilians standing trial for offences under the Criminal Code had legitimate reason to fear that a State security court which included a military judge among its members might not be independent and impartial. Accordingly, it held unanimously in each case that there had been a violation of Article 6 § 1.   With regard to the other complaints concerning the fairness of the proceedings, the Court reiterated that a court whose lack of independence and impartiality had been established could not under any circumstances guarantee a fair trial to persons subject to its jurisdiction. It therefore considered that that it was not necessary to examine those complaints or the complaints under Article 14 taken together with Article 6.   As to the allegations that the length of the proceedings had been excessive, the Court declared the complaint inadmissible in the case of Çaplık v. Turkey and held that there had been no violation of Article 6   § 1 in the cases of Keçeci v. Turkey and Yeşiltaş and Kaya v. Turkey .   The Court considered in each case that the judgments in themselves constituted sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It reiterated that,where it found that applicants had been convicted by a court that was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress would in principle be for them to be retried at an early date by a court satisfying those requirements.   The Court considered that it was not necessary to make an award to Mr Keçeci for costs and expenses, as had not submitted a claim. The Court awarded EUR 1,000 to the applicant in the case of Çaplık v. Turkey and EUR 1,500 to the applicants in each of the other cases for costs and expenses, less EUR 660 already received from the Council of Europe in legal aid in the case of Mr Aslan. (The judgments are available only in French, with the exception of Çaplık v. Turkey , which 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.