CEDH · PRESS;GENERAL;ENG — 25 octobre 2005

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[1]   Summaries of the 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.   Vejmola v. the Czech Republic (application no 57246/00)   Violation of Article 5 § 4 The applicant, Josef Vejmola, is a Czech national, aged 35, who lives in Ostrava-Poruba (Czech Republic).   On 27 May 1999 he was arrested by the police and charged with theft. Criminal proceedings were brought against him and he was placed in pre-trial detention. On 21 October 1999 the applicant applied to be released. While the application was pending before Ostrava Regional Court the, district court, at the prosecutor’s request, extended the applicant’s detention.   On 21 January 2000 the public prosecutor’s office decided to release the applicant. After his release, his lawyer was notified on 3 February 2000 of the decision of Ostrava Regional Court dismissing the application for release lodged by the applicant in October 1999.   In May 2002 the applicant was found guilty of aiding and abetting theft and was fined the equivalent of 952 euros (EUR).   Relying on Article 5 § 4 (right to liberty and security) of the European Convention on Human Rights, the applicant argued that the Czech courts had not decided “speedily” on the lawfulness of his detention, thereby depriving him of the right to lodge further applications for release.   The European Court of Human Rights noted that the applicant had lodged his application for release on 21 October 1999 and had not obtained the final decision on that application until 3   February   2000, three months and 13 days later. A period of such length, which had deprived the application of all legal or practical effect, amounted to a denial of his right to take proceedings to have the lawfulness of his detention decided speedily. Moreover, during that time the applicant had been unable to lodge further applications for release, as he had not been informed of the outcome of his original application. The Court therefore held, unanimously, that there had been a violation of Article 5 § 4. It awarded the applicant EUR   3,000 for non ‑ pecuniary damage and EUR 2,020 for costs and expenses. (The judgment is available only in French.)     Violation of Article 10 Bakır v. Turkey (no. 54916/00)   Violation of Article 6 § 1 Yüksel (Geyik) v. Turkey (no. 56362/00)   Bakır v. Turkey Vedad Bakır is a Turkish national, aged 31, who lives in Bitlis (Turkey). A journalist by profession, he described in the course of a live broadcast for the radio station Karacadağ   the events he had witnessed during the Newroz (new year) celebrations. His comments, which were also retransmitted by the television station MED TV, were critical of the way in which the security forces had handled the celebrations.   On 29 September 1998 Diyarbakır State Security Court sentenced him to one year and eight months’ imprisonment for having “incited the people to hatred or hostility on the basis of a distinction between social classes, races or regions”. Execution of the sentence was stayed under Law no. 4454.   Yüksel (Geyik) v. Turkey Vasfıye Tülay Yüksel (Geyik) is a Turkish national, aged 41, who lives in Istanbul. She is a lawyer and a delegate of the Democracy Party in Istanbul. In December 1993, during a party congress, the applicant made a speech in her capacity as party delegate in which she criticised the Government’s policy towards the Kurdish people.   The applicant was prosecuted for disseminating separatist propaganda and on 5   October 1998 was sentenced by Ankara State Security Court to one year’s imprisonment and payment of a fine. She was imprisoned on 26 July 1999 and granted conditional release for good behaviour on 19 December 1999.   In both cases the applicants contended that their criminal convictions had infringed their right to freedom of expression and violated Article 10. Furthermore, relying on Article 6 § 1 (right to a fair trial), they argued that the state security courts which had tried and convicted them had not constituted “an independent and impartial tribunal” capable of guaranteeing a fair trial, on account of the presence of a military judge in their composition. In addition, Mr Bakır complained that he had been the victim of discrimination based on his political opinions in violation of Article 14 (prohibition of discrimination) read in conjunction with Article 10.   The Court considered that the grounds advanced by the domestic courts in the two cases were not in themselves sufficient to justify the interference with the applicants’ right to freedom of expression. It observed that the applicants had not been guilty of incitement to violence, armed resistance or rebellion, or of hate speech. It also took account of the nature and severity of the sentences imposed. The Court held that the applicants’ convictions were disproportionate to the aims pursued and accordingly not “necessary in a democratic society”. There had therefore been a violation of Article 10 in both cases. In view of that finding, the Court did not consider it necessary to examine the complaint under Article 14 in the Bakır v. Turkey case.   The Court also held, unanimously in both cases, that there had been a violation of Article 6   §   1 in respect of the complaint concerning the lack of independence and impartiality of the state security courts.   By way of just satisfaction, the Court awarded EUR 2,000 to Mr Bakır and EUR   6,500 to Mrs   Yüksel (Geyik) for non-pecuniary damage. It also awarded EUR 1,000 to Mr Bakır and EUR 3,000 to Mrs Yüksel (Geyik) for costs and expenses. (The judgments are available only in French.)   Eser v. Turkey (no. 5400/02)   Violation of Article 6 § 1 The applicant, Mustafa Eser, is a Turkish national born in 1945. At the relevant time he was mayor of the municipality of Hereke (Turkey). In March 2000 he was sentenced to six years, five months and 15 days’ imprisonment for embezzlement of public funds. The Court of Cassation dismissed his appeal in June 2001.   Relying on Article 6 § 1 (right to a fair trial within a reasonable time), the applicant complained about the length of the criminal proceedings brought against him.   The Court noted that the proceedings at issue had lasted over ten years and seven months for two levels of jurisdiction. Having regard to the circumstances of the case, it considered that such a period of time was excessive and failed to meet the “reasonable-time” requirement. The Court therefore held, unanimously, that there had been a violation of Article 6 § 1 of the Convention. It awarded the applicant EUR 2,500 for non-pecuniary damage and EUR   500 for costs and expenses. (The judgment is available only in French.)     No violation of Article 3 Hüsniye Tekin v. Turkey (no. 50971/99)   No violation of Article 13 The applicant, Hüsniye Tekin, is a 29-year-old Turkish national.   She was arrested by the police at about 6.30 p.m. on 22 August 1997 following a violent row with the two owners of a shop, who claimed that she had been attempting to obtain protection money from them on behalf of the PKK (Workers’ Party of Kurdistan). They had managed to restrain her by binding her hands and feet after a struggle in which one of them had broken several fingers, but she had broken free and one of them had consequently fired five shots in her direction.   On 23 August 1997 at about 1.20 a.m. the applicant underwent a medical examination, which revealed various marks and bruises on her back, breasts, stomach, face and neck. When she was released from police custody on 26 August 1997, the applicant was examined by another forensic medical expert, who observed a number of marks and bruises on her face, elbow, left wrist and right thigh.   The applicant initially admitted having attempted to extort money from the shopkeepers on behalf of the PKK but retracted her statement two days later, asserting that she had gone to the shop to look for work.   The applicant subsequently contended that her confessions had been obtained by torture and duress. In October 1997 she lodged a criminal complaint, alleging ill-treatment, against the police officers in whose custody she had been held; she complained, in particular, that she had been interrogated after being blindfolded and stripped, and that she had been beaten and subjected to sexual harassment. Criminal proceedings were instituted and two police officers were charged with ill-treatment. In June 1999 the assize court acquitted them, holding in particular that there was a lack of decisive evidence against them.   The applicant complained that she had been ill-treated while in police custody and that she had not had an effective remedy to secure redress for the suffering she had experienced. She relied on Articles 3 (prohibition of torture and inhuman or degrading treatment) and 13 (right to an effective remedy).   The Court was not persuaded by the highly contradictory statements made by the applicant, whose version of events had varied over time. There was inconsistency between her allegations of ill-treatment during her time in police custody and during the fight in the shop. Ms Tekin had alleged that the marks on her face had been caused by blows she had received in the shop whereas the injuries to the rest of her body had resulted from the treatment to which the police officers had subjected her. The Court doubted that the struggle in the shop had merely resulted in blows to her face, especially as her hands and feet had been bound, she had been chased around the shop and the owners had stated that they had “rushed” at her.   In addition, the applicant stated that she had been threatened with torture, although not “physically” tortured, and that the police officers had squeezed her breasts. While she might well have experienced feelings of apprehension or disquiet if she had been threatened, that was not sufficient to amount to degrading treatment within the meaning of Article 3 of the Convention. With regard to the medical reports, the Court noted that certain injuries observed in the first report were no longer mentioned in the second; it could be inferred that they had improved or healed.   On the basis of the documents in the file, the Court did not possess any evidence from which inferences could be drawn in support of the applicant’s allegations that she had been ill-treated. The Court therefore held unanimously that there had been no violation of Article 3. In view of that conclusion, the applicant’s grievances were not “arguable” for the purposes of Article 13 and the Court held unanimously that there had been no violation of that provision. (The judgment is available only in French.)     No violation of Article 6 IPSD and Others v. Turkey (no. 35832/97)   Violation of Article 11 The applicants are the IPSD association ( Işsizlik ve Pahalılıkla Savaş Derneği , an association campaigning against unemployment and excessively high prices) and its seven founding members, Fettah Ayhan Erkan, Tacettin Çolak, İbrahim Halil Arabulan, Meral Küçükosmanoğlu, Ramazan Kap, Nihat Güldemir and Ahmet Pektopal, who are all Turkish nationals.   The ISPD was founded in July 1992. Its aim, as set out in its memorandum of association, was to “bring together people suffering from poverty so that they could become aware of their own interests and hence find the path to liberation, without discrimination on the ground of their political opinions”.   In October 1992, by order of the Ministry of the Interior, seals were placed on the entrance to the association’s premises. The public prosecutor applied for an order dissolving the association on the ground that its memorandum of association was defective. In a judgment of 17 September 1993 the court of first instance allowed an objection by the applicants to the conduct of the proceedings.   However, on an appeal by the public prosecutor, the Court of Cassation set aside the first-instance judgment on the ground that certain phrases used in the memorandum of association were contrary to Law no. 2908, by which associations are prohibited from carrying out political activities and insulting the Turkish State. It held, in particular, that the use of expressions such as “the peoples of Turkey” and “considers it necessary to fight against imperialists, who seek to dominate Turkey by transforming it into a market and a source of raw materials” undermined the principle of the indivisible unity of the nation and insulted the Turkish State. In a judgment of 25 October 1995 the court of first instance complied with the Court of Cassation’s judgment and decided to dissolve the applicant association. The applicants appealed but to no avail.   The applicants complained that the proceedings resulting in the IPSD’s dissolution had been unfair in that a final judgment delivered at first instance had been set aside following an extraordinary appeal and the legal classification of the alleged offence had been altered in the course of the proceedings. They further submitted that the IPSD’s dissolution had infringed their right to freedom of association. They relied on Articles 6 (right to a fair hearing) and 11 (freedom of assembly and association).   The Court observed that, within the period provided for by law, the public prosecutor had lodged an appeal with the Court of Cassation, which was an ordinary remedy. Contrary to what the applicants had maintained, no court decision that had become final had been challenged in the proceedings. Accordingly, the principle of legal certainty had not been infringed and there had been no violation of Article 6 on that account.   As to the allegation that the facts of the case had been given a different legal classification in the course of the proceedings, the Court noted that the public prosecutor had applied for the association to be dissolved on the ground that its memorandum of association was defective, but that it had been dissolved on the ground that its aims were contrary to the law. However, the applicants had had the possibility of exercising their defence rights in a practical and effective manner, taking into account the national authorities’ recharacterisation of the facts. The Court therefore held unanimously that there had been no violation of Article 6 on that account either.   With regard to the dissolution itself, the question for the Court to address was whether the measure had been “necessary in a democratic society”. It noted firstly that the order for the IPSD’s dissolution had been made even before it had been able to start its activities, solely on the basis of its memorandum of association. The parts of the memorandum which the Turkish courts had taken as a basis for dissolving the association included an analysis of the country’s economic and social situation and criticism of Government policy in that area. The Court considered that the principles supported by the IPSD were not in themselves contrary to the fundamental principles of democracy. It further observed that the IPSD did not envisage using anything other than legal and democratic means to achieve the aims set out in its memorandum of association, which did not contain any expressions encouraging the use of violence or potentially amounting to hate speech; that, in the Court’s view, was the essential factor to take into consideration.     Accordingly, since the IPSD had not advocated any policy that could have undermined the democratic regime in Turkey and had not urged or sought to justify the use of force for political ends, its dissolution could not reasonably be said to have met a “pressing social need” and thus to have been “necessary in a democratic society”. The Court therefore held unanimously that there had been a violation of Article 11 and awarded the applicants jointly EUR 7,000   for non-pecuniary damage and EUR 1,500   for costs and expenses. (The judgment is available only in French.)   N.M. v. Turkey (no. 35065/97)   Violation of Article 5 § 3 The applicant, N.M., is a Turkish national, aged 44 years, who at the relevant time was living in Amasya (Turkey).   The applicant was arrested on suspicion of belonging to the illegal organisation TDKP and was placed in pre ‑ trial detention on 21 January 1995. İzmir State Security Court extended his pre ‑ trial detention, citing on seven occasions “the nature of the offences concerned, the state of the evidence and the contents of the case file”, and on two occasions giving no reasons for its decision. The applicant, for his part, lodged five applications for release in 1995 and four in 1996.   On 18 December 1996 the applicant was released. In April 1997 he was sentenced to three years and nine months’ imprisonment.   Relying on Article 5 § 3 (right to liberty and security), the applicant complained about the excessive length of his pre-trial detention.   The Court noted that the applicant had been kept in pre-trial detention for some 23 months. The state security court had consistently ordered the extension of the applicant’s detention at the end of each hearing in virtually identical, not to say stereotypical terms, referring on each occasion to the nature of the offence concerned, the state of the evidence and the contents of the case file. On two occasions, it had omitted to give reasons for its decision.   In the Court’s view, while “the state of the evidence” could be understood to mean the existence and persistence of serious indications of guilt and such circumstances could in general be relevant factors, they could not on their own justify extending the applicant’s detention over such a long period. The Court therefore held, unanimously, that there had been a violation of Article 5 § 3. It awarded the applicant EUR 2,500 for non ‑ pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is 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:   Fernandez-Rodriguez v. France (no. 69507/01)   Violation of Article 6 § 1 The applicants, José and Rosendo Fernandez-Rodriguez, are Spanish nationals aged 63 and 58 respectively who live in Saint-Lô (France). They brought proceedings challenging the sale of the house in which they were tenants.   Relying on Article 6 § 1 (right to a fair hearing), the applicants complained that they had not had a fair hearing in the Court of Cassation in that they had not received a copy of the reporting judge’s report, whereas the advocate-general had.   The Court reiterated that the failure to provide applicants or their counsel with the reporting judge’s report before the hearing although a copy had been sent to the advocate-general created an imbalance which was not reconcilable with the requirements of a fair trial. The Court therefore held unanimously that there had been a violation of Article   6 § 1 and awarded the applicants EUR 1,000   for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1   Violation of Article 1 of Protocol No. 1 Kutepov and Anikeyenko v. Russia (no. 68029/01) Yuriy Romanov v. Russia (no. 69341/01) In the first case, following the death of the first applicant, Petr Prokhorovich Kutepov, the Court decided to strike his application out of its list. The second applicant, Mikhail Ivanovich Anikeyenko, is a Russian national aged 75 who lives in Belgorod (Russia). Both applicants received old-age pensions.   In the second case, the applicant, Yuriy Petrovich Romanov, is a Russian national aged 73 who lives in Moscow. On 1 April 1996 he retired from the position as a consultant at the Ministry of Finance of Russia.   Kutepov and Anikeyenko In 1999 the applicants sued the Pension Fund Agency of Belgorod alleging that their pensions had been calculated in breach of a scheme for the calculation of retirement benefits introduced by the Pensions Law of 1997.   In May 1999 Oktyabrskiy District Court of Belgorod dismissed the applicants’ claims as unfounded. On appeal Oktyabrskiy District Court found in the applicants’ favour and ordered the agency to increase the applicants’ pension and awarded them arrears. The judgment was not enforced.   In February 2001 the Presidium of Belgorod Regional Court, having examined an extraordinary appeal in the supervisory review proceedings lodged by the President of the Belgorod Regional Court, quashed the previous judgments and upheld the judgment of May 1999 annulling the previously awarded increase as well as the arrears.   Yuriy Romanov In 1996 – 1997 Mr Romanov repeatedly applied to the Ministry of Labour for additional retirement benefits due to former State employees. In October 1997 a deputy Minister granted the applicant’s request and increased his pension as of 9 September 1997. Thereafter the applicant sued the Ministry of Labour seeking arrears.   On 15 September 1999 Basmanny District Court ruled in the applicant’s favour and ordered the Ministry of Labour to re-calculate his pension.   In February 2001 a deputy Prosecutor General filed an extraordinary appeal against the judgment of 15 September 1999. In February 2001 the Civil Section of the Supreme Court of Russia, by way of supervisory review, quashed that judgment.   All the applicants complained about the quashing of final judgments in their favour. They relied on Article 6 §   1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property) to the Convention.     The Court noted, in both cases, that final and binding judgments in the applicants’ favour were set aside by a higher court in supervisory review proceedings, following an application by a public prosecutor, whose power to make such applications was not subject to any time-limit, so that judgments were liable to challenge indefinitely. As a result, the applicants had had to endure legal uncertainty for a long period after the final judgments were quashed. There had therefore been a breach of the principle of legal certainty and of the right of access to a court in the applicants’ cases. The Court therefore held, unanimously, that the setting aside of the judgments in supervisory review proceedings violated Article 6 § 1.   The Court recalled that the sums awarded to the applicants by the judgments in question could be considered as possessions. Quashing the judgments after they had become final therefore constituted an interference with the applicants’ right to the peaceful enjoyment of their possessions.     There being no public interest defence justifying that interference, the Court also held, unanimously, that there had been a violation of Article 1 of Protocol No 1.   Mr Anikeyenko did not submit any claims for just satisfaction. The Court awarded Mr   Romanov EUR 160 for pecuniary damage and EUR 500 for non-pecuniary damage. (The judgments are available only in English.)         Violation of Article 6 § 1 Hüseyin Yıldız v. Turkey (no. 58400/00)   Öner and Others v. Turkey (no. 64684/01) Hüseyin Yıldız is a Turkish national who was sentenced in 1998 to 12 years and six months’ imprisonment for belonging to the illegal organisation TKP/ML-TIKKO.   In the case of Öner and Others , the applicants are 18 Turkish nationals who live in Adıyaman (Turkey). They were all sentenced in 1999 to three years and nine months’ imprisonment for aiding and abetting an illegal organisation.   In both cases the applicants complained that they had not had a fair trial, in particular because of the presence of a military judge in the composition of the state security courts that had convicted them. They relied on Article 6 (right to a fair trial).   The Court held unanimously in both cases that there had been a violation of Article 6 §   1 as regards the complaint that the state security courts were not independent or impartial. With regard to the other complaints alleging that the proceedings were unfair, 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 subject to its jurisdiction. It therefore considered that it was unnecessary to examine those complaints.   As regards the application of Article 41 (just satisfaction), the Court considered that the judgments constituted in themselves 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 given a retrial without delay by an independent and impartial court. In both cases the Court awarded the applicants EUR 1,500   for costs and expenses. (The judgment in the case of Hüseyin Yıldız v. Turkey is available only in French and the judgment in Öner and Others v. Turkey 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)   Beverley Jacobs (telephone: +00 33 (0)3 90 21 54 21) 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.