CEDH · PRESS;GENERAL;ENG — 13 septembre 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.   Lehtinen v. Finland (application no. 34147/96)   Violation of Article 6 § 1 The applicant, Kenneth Lehtinen, is a Finnish national who was born in 1950 and lives in Järvenpää (Finland).   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights, the applicant complained of the length of criminal proceedings which were instituted against him for aiding and abetting an aggravated embezzlement. He was first interrogated on 11 October 1993 by the National Bureau of Investigation ( keskusrikospoliisi , centralkriminalpolisen ). An indictment was served on him on 14 March 1996 and on 9 September 1996 criminal proceedings were instituted before the District Court ( käräjäoikeus , tingsrätt ) of Tuusula. He was acquitted by a judgment of 13 November 1997. The proceedings came to an end on 31 December 1998 when the Court of Appeal upheld the judgment.   The European Court of Human Rights concluded that the proceedings lasted five years, two months and 20 days which, having regard to the circumstances of the case, the Court considered excessive and failed to satisfy the “reasonable time” requirement. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 of the Convention and awarded the applicant 3,000   euros   (EUR) for non-pecuniary damage and EUR   100 for costs and expenses. (The judgment is available only in English.)   Gosselin v. France (no. 66224/01)   Violation of Article 5 § 3 The applicant, Patrick Gosselin, is a French national who was born in 1967 and lives in Paris.   The applicant was arrested by the police and remanded in custody on 12 March 1997 for his suspected role in the murder of one of his former fellow detainees, who had been shot in the head earlier that month.   The applicant’s pre-trial detention was extended several times by the investigating judge at the Meaux tribunal de grande instance . He applied for bail on eight occasions but each application was refused by the investigating authorities, whose decisions were based on considerations such as the continuing suspicions against him, the presence of exceptional and continuing prejudice to public order, the sentence he faced, the risk of his colluding with the other persons charged or of pressure being brought to bear on witnesses, or the lack of guarantees that he would appear for trial.   On 28 September 2000 the Seine-et-Marne Assize Court found the applicant guilty of murder and sentenced him to 30 years’ imprisonment, which was reduced to 20 years on appeal.   Relying on Article 5 § 3 (right to liberty and security), the applicant complained of the length of his pre-trial detention, which had amounted to three years, six months and 16 days. He also complained under Article 6 § 1 (right to a fair hearing) that the judgment of 28 March 2000 in which the Indictment Division of the Paris Court of Appeal had refused one of his bail applications had not been served on him, and that this had prevented him from appealing to the Court of Cassation against the decision to keep him in custody.   The Court considered that there was nothing in the evidence before it to support the assertion that the judgment of 28 March 2000 had not been served on the applicant. It therefore decided unanimously to declare the complaint under Article 6 § 1 inadmissible and the complaint under Article 5 § 3 admissible.   The Court acknowledged that the reasons given by the investigating authorities for refusing the applicant’s bail applications had been both relevant and sufficient throughout the investigation. It considered, however, that the national authorities had not conducted the proceedings with due diligence and noted, in particular, that there had been several periods of inactivity attributable to the judicial authorities.   Having regard to the circumstances of the case, the Court held unanimously that the excessive length of the applicant’s pre-trial detention had given rise to a violation of Article 5 § 3. As the applicant had not submitted any claim for just satisfaction, the Court made no award under that head. (The judgment is available only in French.)   Violation of Article 6 § 1 (as regards the reporting judge’s report) Violation of Article 6 § 1 (as regards the Advocate-General’s submissions)   No violation of Article 6 § 1 (as regards independence and impartiality) M.B. v. France (no. 65935/01) The applicant, M.B., is a French national who was born in 1945 and lives in Boulogne-Billancourt (France). After being made redundant in 1993, he brought proceedings seeking compensation from his former employers, an insurance company.   The applicant complained under Article 6 § 1 (right to a fair hearing) that the proceedings before the Court of Cassation had been unfair in that he had not been sent a copy of the reporting judge’s report or the Advocate-General’s submissions, he had not been given notice to attend the hearing and had not been represented. He further alleged that his case had not been heard by an independent and impartial tribunal.   Referring to its settled case-law on the subject, the Court held unanimously that there had been a violation of Article 6 § 1 in that the applicant had not received a copy of the reporting judge’s report before the hearing, whereas the advocate-general had, and had not been informed of the tenor of the Advocate-General’s submissions, to which he had therefore been unable to reply. Having regard to that conclusion, the Court considered that it was unnecessary to examine separately the applicant’s complaint that he had not been given notice to attend the hearing.   Furthermore, on the basis of the evidence before it, the Court considered that there were no grounds for finding that the Court of Cassation had not been independent and impartial. It therefore held that there had been no violation of Article 6 § 1 in that respect.   Under Article 41 (just satisfaction), the Court awarded the applicant   EUR 500 for costs and expenses. (The judgment is available only in French.)     Violation of Article 8 H.N. v. Poland (no. 77710/01)   Violation of Article 6 § 1 The applicant, H.N., is a Norwegian national who was born in 1946 and lives in Norway.   In 1987 the applicant married a Polish national, M.C. They had three children together a daughter A, born in 1989, a son, B born in 1992 and another daughter C, born in 1994.   In June 1998, after the couple divorced, the Inderøy District Court (Norway) granted the applicant custody of the three children. M.C. had visiting rights but was prohibited from visiting the children at their schools. Both parents were granted parental authority.   In August 1999 M.C. abducted the three children and took them to Poland. Two days later the applicant applied to the Polish Ministry of Justice for assistance in securing the return of the children. His application was subsequently submitted to Warsaw District Court.   In November 1999 the court adjourned the first in a series of hearings. In December 1999 it requested an expert report on the family relationships which was submitted in February 2000. The following month the court ordered M.C. to return the children to the applicant. Knowing M.C.’s intention to appeal against this decision and fearing that she might hide them, the applicant’s counsel asked that the children be placed in a child care facility. The request was refused.   Enforcement proceedings were started in July 2000 and on 8 January 2001 the Warsaw District Court ordered the bailiff to take the children away from M.C. by force if necessary. The bailiff assisted by two police officers and accompanied by a social worker, the applicant and the Norwegian consul attempted to enforce the court order in April of the same year. The mother, however, had already disappeared with the children. The abduction was reported to the police in Poland and Norway.   In August 2001 Norwegian Central Authority submitted to its Polish counterpart details of M.C.’s bank account held in Warsaw where she was receiving her Norwegian pension. No apparent action was taken on that information.   On 28 February 2003 Warsaw District Court was informed that M.C. was under indictment after adopting false identities for herself and the two children.   By that time A had been located by a family member, and returned to her father’s house in Norway in July 2002. A guardian returned the two remaining children to their father in April 2003.   The applicant complained that the non-enforcement of the final return order under the 1980 Hague Convention on the Civil Aspects of International Child Abduction had violated his rights under Articles 8 (right to respect for private and family life) and 6 § 1 (right to a fair hearing within a reasonable time).   With regard to the applicant’s complaint under Article 8 that the Polish authorities failed to reunite him swiftly with his children, the European Court of Human Rights noted several delays for which no satisfactory explanation has been given. In particular, it took the District Court almost two months to obtain a six-page expert opinion and the case lay dormant between March and May 2000. As for the enforcement proceedings, the authorities took only one procedural decision between April 2001 and   July 2002 and there were further periods of inactivity ranging from eight to 12 weeks which the Court regarded as important.   The authorities did little to facilitate the execution of the order. In particular, they did not act on the information given to them by the Norwegian Central Authority, nor did they act to prevent M.C. from going into hiding with the children despite being warned. The bailiff also failed to speed up the enforcement of the court’s order to remove the children by force scheduled for 19 April 2001   The Court concluded that the Polish authorities failed to make adequate and effective efforts to enforce the applicant’s right to the return of his children and thereby breached his right to respect for his family life.   As to the applicant’s complaint about the unreasonable length of the proceedings which lasted three years, seven months and 16 days, the Court noted that the delays could be largely attributed to the domestic authorities for the reasons previously mentioned.   In view of what was at stake for the applicant and the irreversible character of the measures concerned, the national authorities were required by Article   6 §   1 to act with exceptional diligence in ensuring the progress of the proceedings, which they failed to do.   The Court found, unanimously, that there had been a violation of Article 8 and Article   6 §   1 of the Convention and awarded the applicant EUR   10,000 for non-pecuniary damage and EUR   12,000 for costs and expenses. (The judgment is available only in English.)   Skrobol v. Poland (no. 44165/98)   Violation of Article 5 § 3 The applicant, Piotr Skrobol, is a Polish national who was born in 1958 and lives in Rydzewo (Poland).   On 4 November 1993 the Szczecin Regional Prosecutor charged the applicant with the offence of obtaining 71,000,000,000 old Polish zlotys under false pretences. He was arrested on 6   November 1993 and was detained on remand on 9 November 1993.   His detention was prolonged pending investigations and his numerous requests for release were dismissed on the grounds that, among other things, he might go into hiding.   In May 1995 the Regional Prosecutor closed the investigation and submitted a bill of indictment against the applicant. The applicant requested that the case be referred back for further investigation.   In June 1996 his request to be released on bail was refused since the court considered that bail in the form of real estate, as proposed by the applicant, was of a relatively small value in relation to the gravity of the offences concerned.   In September 1997 the court ordered that the applicant be released and remain under police supervision upon payment of bail of 20,000 new Polish zlotys (PLN). This amount was subsequently reduced to PLN 15,000.     On 26 June 1998 the court decided to release the applicant. Three days later he was sentenced to six and a half years imprisonment   The applicant complained about the length of his detention on remand and that the courts imposed excessive conditions on his release on bail. He relied on Article 5 § 3 (right to liberty and security).   The European Court of Human Rights did not find that the court’s decisions to refuse the applicant’s offer of bail on the ground that it failed to provide a sufficient deterrent against flight were open to criticism.   On the other hand, the Court did find that the proceedings progressed very slowly and that the authorities had not shown enough diligence. In particular, the first hearings were held more than one year after the bill of indictment was submitted. There were also intervals of as long as six months between the hearings after the first hearing on the merits.   The Court found that the authorities’ decisions to keep the applicant in detention relied essentially on the gravity of the charges against him and the risk that the applicant would receive a severe sentence. It noted that, as the proceedings progressed, the courts arguments for refusing to release the applicant lost their significance and were not sufficiently relevant to justify his detention for the whole period of four years, seven months and 20 days.   The Court held unanimously that there had been a violation of Article 5 § 3 and awarded the applicant EUR   3,000 for non-pecuniary damage. (The judgment is available only in English.)     Violation of Article 6 § 1 Han v. Turkey (no. 50997/99)   Violation of Article 10 The applicant, Tahir Han, is a Turkish national who was born in 1960 and lives in Adana (Turkey).   In January 1996 the public prosecutor at Ankara State Security Court filed an indictment in which he accused the applicant of disseminating propaganda against the indivisible integrity of the State, an offence under Article 8 of the Prevention of Terrorism Act. The offence related to a speech the applicant made in 1994 at a congress held by the Peoples’ Democracy Party ( Halkın Demokrasi Partisi ), of which he was a member.   In January 1997 Ankara State Security Court, which was composed of three judges including a military judge, found the applicant guilty of an offence under Article 8 § 1 of the Prevention of Terrorism Act, and sentenced him to one year’s imprisonment and a fine.   On 21 December 2000 Law No. 4616 on Conditional Release, Deferral of Procedure and Punishments was promulgated and the applicant’s sentence was deferred. As a result, he did not pay the fine or serve his prison sentence.   The applicant complained that, among other things, he did not have a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench in breach of Article 6 (right to a fair trial). He further complained that his conviction and sentence constituted an unjustified interference with his rights to freedom of thought and expression, in breach of Article 10 (freedom of expression).   The European Court of Human Rights found, as it had done in previous cases of a similar nature, that it was understandable that the applicant, who had been prosecuted in a State Security Court should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. The applicant’s fear as to the State Security Court’s lack of independence and impartiality could be regarded as objectively justified.   It examined the reasons given in the State Security Court’s judgment and did not consider them sufficient to justify the interference with the applicant’s right to freedom of expression. It considered that, taken as a whole, the applicant’s speech did not encourage violence, armed resistance or insurrection and, therefore, did not constitute hate speech. In the Court’s view, this was the essential factor in the assessment of the necessity of the measure.   The Court therefore concluded, as it had done in previous cases raising similar issues, that the applicant’s conviction was disproportionate to the aims pursued and therefore not necessary in a democratic society.   The Court held unanimously that there had been a violation of Articles 6 § 1 and Article   10. It considered the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage in respect of Article 6 § 1 but awarded the applicant EUR   5,000 for non-pecuniary damage for his complaint under Article 10 and EUR   1,000 for costs and expenses. (The judgment is available only in English.)   İ.A. v. Turkey (no. 42571/98)   No violation of Article 10 The applicant, İ.A., is a Turkish national who was born in 1960 and lives in France.   He is the proprietor and managing director of the Berfin publishing house. In November 1993 he published a novel by Abdullah Rıza Ergüven called Yasak Tümceler (“The Forbidden Phrases”) in which the author addressed philosophical and theological issues in a novelistic style. 2,000 copies of the book were printed.   The applicant was prosecuted under Article 175 §§ 33 and 4 of the Criminal Code for publishing insults against “God, the Religion, the Prophet and the Holy Book”. On 28 May 1996 Istanbul Court of First Instance sentenced him to two years’ imprisonment, which was later commuted to a fine equivalent at the time to 16 United States dollars. The court based its decision on an expert opinion and on an extract from the book in which the author asserted, among other things: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha’s arms ... God’s messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a living animal.”     The applicant appealed on points of law but was unsuccessful.   The applicant alleged that his conviction and sentence had infringed his right to freedom of expression, in breach of Article 10 (freedom of expression).   The Court considered that the applicant’s conviction had amounted to interference with his right to freedom of expression. The interference had been prescribed by law and had pursued the legitimate aims of preventing disorder and protecting morals and the rights of others.   The issue for the Court to determine was whether the interference had been “necessary in a democratic society”; this involved weighing up the conflicting interests relating to the exercise of two fundamental freedoms, namely the applicant’s right to impart his ideas on religious theory to the public, on the one hand, and the right of others to respect for their freedom of thought, conscience and religion, on the other hand.   The Court reiterated in that connection that those who chose to exercise the freedom to manifest their religion, irrespective of whether they did so as members of a religious majority or a minority, could not reasonably expect to be exempt from all criticism. They had to tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.   However, the present case concerned not only comments that were disturbing or shocking or a “provocative” opinion but an abusive attack on the Prophet of Islam. Notwithstanding the fact that there was a certain tolerance of criticism of religious doctrine within Turkish society, which was deeply attached to the principle of secularity, believers could legitimately feel that certain passages of the book in question constituted an unwarranted and offensive attack on them.   In those circumstances, the Court considered that the measure in question had been intended to provide protection against offensive attacks on matters regarded as sacred by Muslims and had therefore met a “pressing social need”. It also took into account the fact that the Turkish courts had not decided to seize the book in question, and consequently held that the insignificant fine imposed had been proportionate to the aims pursued by the measure in question.   The Court therefore held, by four votes to three, that there had been no violation of Article 10. (The judgment is available only in French.)   Violation of Article 6 § 1 Ivanova v. Ukraine (no. 74104/01)   Violation of Article 1 of Protocol No. 1 The applicant, Ninel Andriyivna Ivanova, is a Ukrainian national who was born in 1930 and lives in Kyiv.   In 1998 she brought proceedings against one of her neighbours whom she accused of having unlawfully occupied and made alterations to a corridor in the house they shared. In a judgment of 19 August 1999, Podilskyy District Court in Kyiv found for the applicant, holding that she owned the corridor and ordering her neighbour to restore it to its original condition.   While enforcement proceedings were pending, the Deputy President of the Supreme Court lodged a supervisory protest (an extraordinary appeal) against the judgment of 19   August 1999 on the ground that the District Court had erred in its assessment of the evidence and in the application of the law. In a judgment of 26 February 2001, the Presidium of the Kyiv City Court quashed the judgment of 19   August 1999 and remitted the case to the District Court, which dismissed the applicant’s claims on 3   July 2002, on the ground that she had not paid in full the State tax due on the introduction of a complaint.   The applicant alleged that the order quashing the final, binding judgment in her favour of 19   August 1999 had deprived her of right to a fair hearing and constituted a violation of Article 6 § 1 (right to a fair hearing) and of Article 1 of Protocol No. 1 (protection of property).   The Court reiterated that the use of the supervisory-review procedure to set aside a final, binding judgment infringed the principle of legal certainty and the applicant’s “right to a court”, as guaranteed by Article 6 § 1 of the Convention. Consequently, it held unanimously that there had been a violation of that provision.   The Court considered that the applicant was the owner of a “possession” within the meaning of the Convention and that the order quashing the final judgment in her favour constituted interference with her right to the peaceful enjoyment of her possessions. It rejected each of the Ukrainian Government’s arguments and found that the fair balance that had to be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights had been upset and that the applicant had borne and continued to bear an individual and excessive burden. Consequently, the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1. Under Article 41 (just satisfaction), the Court awarded the applicant EUR   3,000 for pecuniary and non-pecuniary damage and EUR 480 for costs and expenses. (The judgment is available only in English).   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 Acar v. Turkey (no. 52133/99) Ernekal v. Turkey (no. 52159/99) Hasan Taşkin v. Turkey (no. 71913/01) In these three Turkish cases, the applicants, who are all Turkish nationals, complained of delays in the payment of compensation that had been awarded to them for expropriated land. They further alleged that the interest they had received did not reflect the actual rate of inflation between the date the awards were assessed and the date of payment. They relied on Article 1 of Protocol No. 1 (protection of property). Hasan Taşkin also complained under Article 6 § 1 (right to a fair hearing within a reasonable time) of the length of the procedures to which he had been a party.   The Court declared the applications admissible and unanimously found in each of the cases a violation of Article 1 of Protocol No. 1. It decided that no separate examination of Hasan Taşkin’s complaint under Article 6 § 1 was necessary. It awarded the applicants the following sums, expressed in euros, for pecuniary damage and costs and expenses (The Acar v. Turkey and Ernekal v. Turkey judgments are available in English only and the Hasan Taşkin v. Turkey judgment in French only).     Pecuniary damage Costs and expenses   Acar v. Turkey   740   500 Ernekal v. Turkey 550 500 Hasan Taşkin v. Turkey 9,147 -     Violation of Article 6 § 1 Lyutykh v. Ukraine (no. 22972/02)   Violation of Article 13 The applicant, Valentina Aleksandrovna Lyutykh, is a Ukrainian national who was born in 1952 and lives in Pervomayskiy (Ukraine).   She complained under Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy) of the failure of her employer, a public undertaking called Khimprom, to comply with a court order requiring it to pay her arrears of salary.   The Court noted a failure to comply with a court order dated March 2001 in the applicant’s favour for a period in excess of four years. The authorities had thus rendered Article 6 § 1 largely ineffective. The Court further noted that the applicant had not had any effective domestic remedies available to her. It accordingly unanimously held that there had been a violation of Articles 6 § 1 and 13 and awarded the applicant EUR 640 for pecuniary damage, EUR 1,500 for non-pecuniary damage and EUR 100 for costs and expenses. (The judgment is available only in English.)   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site.   [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.