CEDH · PRESS;GENERAL;ENG — 10 novembre 2005

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Austria (application no 55193/00)   Violation Article 6 § 1 The applicant, Richard Schelling, is an Austrian national who lives in Langenegg (Austria).   In August 1988 the applicant made applications under the Water Act and the Landscape Protection Act for permission to install a culvert on his land. These were refused on 21 June 1990 by Bregenz District Administrative Authority. The applicant appealed.   A number of proceedings ensued before the Vorarlberg Regional Government and the Administrative Court.   In July 1999 the Administrative Court dismissed the applicant’s appeal against the District Authority’s decision of 21 June 1990 concerning the request for permission under the Landscape Protection Act. It also held that there was no need for an oral hearing and an inspection of the applicant’s land since the proceedings had been carried out correctly and the facts, insofar as relevant in view of the applicable law, were undisputed.   The applicant complained that the administrative proceedings to which he was a party were unfair because the court concerned failed to hold a public oral hearing. He relied on Article 6 § 1 (right to a fair hearing).   The Court held unanimously that there had been a violation of Article 6 § 1 on account of the lack of a public oral hearing before the Administrative Court and awarded the applicant 3,500   euros (EUR) for costs and expenses. (The judgment is available only in English.)     Violation Article 5 § 3 Dželili v. Germany (no. 65745/01)   No violation Article 6 § 1 The applicant, Dževdet Dželili, is a national of “the former Yugoslav Republic of Macedonia” who was born in 1971. When he lodged his application, he was detained in Oldenburg (Germany). He is currently living in Hamburg (Germany).   The applicant was arrested on 6 June 1996 and placed in detention on remand until 20 March 2001, when he was convicted of aggravated robbery and grievous bodily harm. The proceedings are still pending.   The applicant alleged that the length of his detention on remand (four years and eight months) and the length of the criminal proceedings against him (more than nine years and one month) exceeded a reasonable time. He relied on Article 5 §§ 1 (right to liberty and security) and 3 (right to be brought promptly before a judge) and Article 6 § 1 (right to a fair trial within a reasonable time).   The Court held by six votes to one that there had been a violation of Article 5 § 3 concerning the applicant’s detention. It held unanimously that no separate issue arose under Article 5 § 1 and that there had been no violation of Article 6 § 1 due to the applicant’s loss of victim status. The Court held unanimously that the finding of a violation of Article 5 § 3 constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR 3,000 for costs and expenses, les EUR 824 (received by way of legal aid from the Council of Europe). (The judgment is available only in English.)     No violation Article 8 Süss v. Germany (No. 1) (no. 40324/98)   No violation Article 6 § 1 The applicant, Werner Süss, is a German national who was born in 1940 and lives in Berlin.   In 1989 the applicant’s wife left him, taking their daughter with her. Proceedings were instituted before the Charlottenburg District Court. The couple initially came to a number of friendly settlements whereby the applicant could have access to his daughter.   During the subsequent divorce proceedings, the applicant’s wife was awarded custody of her daughter, then aged ten, and the applicant’s access was suspended. The court based its decision on psychologists’ reports and the wishes of the child herself. The applicant had his last contact with his daughter in December 1992. The mother subsequently denied him any further contact. In November 2002 the child attained the age of majority.   The applicant complained about the German court decisions suspending his right of access to his daughter. He also claimed that the court proceedings concerned were unfair. He relied on Article 8 (right to respect for private and family life) and Article 6 § 1 (right to a fair hearing).   The Court found that the national courts’ decisions to suspend the applicant’s access to his daughter were made in the child’s best interest, taking account of the parents’ difficult relationship which had put a great strain on their child and had caused her to reject her father. The Court was therefore satisfied that the German courts had adduced relevant reasons to justify their decisions refusing access.   The Court also found that the German courts’ procedural approach had been reasonable and that it had gathered enough background information on which to reach a reasoned decision concerning the applicant’s access to his child.   It therefore held, unanimously, that there had been no violation of Article 8.   As to the applicant’s complaints that the court proceedings had been unfair, the Court found that there was no evidence that the national courts’ decisions could be regarded as arbitrary, unreasonable or biased. It therefore concluded that, in so far as a separate issue had arisen under Article 6 § 1, there had been no violation of this provision. (The judgment is available only in English.)   No violation Article 3   Violation Article 8 Argenti v. Italy (no. 56317/00)   Violation Article 6 § 1 The applicant, Emanuele Argenti, is an Italian national who was born in 1956. He is currently being held in Terni Prison (Italy), where he is serving a life sentence, imposed in 1997 for aggravated homicide, burglary, aggravated extortion, violation of the firearms legislation and belonging to a mafia-type organisation.   From July 1992 to March 2005 he was subject to the special prison regime laid down in section 41 bis of the Prison Administration Act, which derogates from the conditions for detention laid down in that Act. Application of the regime was extended on 21 occasions and the applicant brought 13 appeals against its use.   The applicant alleged that the prolonged application of the regime laid down in Article 41 bis amounted to treatment that was contrary to Article 3 (prohibition of inhuman or degrading treatment or sentences) and had entailed an infringement of Article 8 (right to respect for private and family life) on account of the restrictions on family visits and the supervision of his correspondence. He also relied on Article 13 (right to an effective remedy).   The Court noted that the arguments adduced to justify the continued limitations on the applicant’s rights were not disproportionate to the seriousness of the offences with which the applicant had previously been charged: he had been given a long sentence for very serious crimes. Accordingly, the suffering or humiliation which he might have experienced did not go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment (extended in this case) or punishment. In addition, the applicant had not submitted evidence to the Court which would have enabled it to conclude that the extension of the restrictions was not clearly justified. Accordingly, the Court concluded unanimously that there had been no violation of Article 3.   Further, the Court pointed out that it had already ruled that the regime provided for under Article 41 bis was compatible with Article 8 of the Convention. It noted in the present case that, in justifying the continued imposition of restrictions, the Minister of Justice had referred in each decree to any changes in the applicant’s personal situation since the preceding order. Consequently, the Court concluded unanimously that there had been no violation of Article 8 with regard to the restrictions on family visits.     As to the supervision of the applicant’s correspondence, the Court pointed out that it had already ruled that section 18 of the Prison Administration Act, which allowed for supervision of prisoners’ correspondence, could not be considered legislation within the meaning of Article 8 of the Convention. The Court therefore concluded unanimously that there had been a violation of this provision.   The Court also noted that the applicant was, in essence, complaining that there had been a violation of his right to a court, as guaranteed in Article 6   § 1, and decided to examine his complaint under this head. It noted that the courts had never ruled on the merits of the applicant’s four appeals and could only conclude that the lack of any decision on the merits of those appeals nullified the effect of the courts’ review of the decrees issued by the Minister of Justice. Further, if the legislation required the court in question to reach its decision within ten days, this, in the Court’s opinion, was on account of the seriousness of the special regime’s effects on prisoners’ rights and the fact that the impugned decision remained valid for only a limited time. Consequently, the failure of the courts dealing with the case to rule on the applicant’s appeals had infringed the latter’s right to have his case heard by a court. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 §   1.   The Court considered that the findings of violations constituted in themselves sufficient just satisfaction for the non-pecuniary damage alleged by the applicant. (The judgment is available only in French.)     Violation Article 6 § 1 taken together Bocos-Cuesta v. the Netherlands (no.54789/00)   with Article 6 § 3 (d) The applicant, Martin Bocos-Cuesta, is a Spanish national who was born in 1957 and lives in Barcelona (Spain).   On 27 April 1998, the Amsterdam Court of Appeal convicted the applicant of sexual assault and acts of indecency on four children aged between six and 11, and sentenced him to a term of imprisonment.   The court based the conviction on, among other things, statements made by the four children to the police. The court held that hearing the children as witnesses would possibly force them to relive a very traumatic experience and that their interests outweighed those of the applicant in that respect. The Supreme Court rejected the applicant’s appeal for the same reason.   The applicant alleged that he had not had a fair trial in that the defence had no opportunity to question the four children whose statements were used in evidence against him. He relied on Article 6 §§ 1 (right to a fair trial) and 3 (d) (right to obtain attendance and examination of witnesses)   The Court noted that the applicant was not provided with an opportunity to follow the manner in which the children were heard by the police, for instance by watching in another room via technical devices, nor was he then or later provided with an opportunity to have questions put to them. Furthermore, as the children’s statements to the police were not recorded on videotape, neither the applicant nor the trial court judges were able to observe their demeanour under questioning and thus form their own impression of their reliability. While it was true that the trial courts undertook a careful examination of the statements taken from the children and gave the applicant ample opportunity to contest them, the Court found this was no substitute for a personal observation of a witness giving oral evidence.   As regards the reason given by the domestic courts for dismissing the applicant’s request to hear the victims, namely that the applicant’s interests were outweighed by the interests of the children, the Court has found that this reason was insufficiently substantiated and, to a certain extent, speculative.   The Court therefore found that the applicant could not be regarded as having had a proper and adequate opportunity to challenge the witness statements which were of a decisive importance for his conviction and, consequently, that he did not have a fair trial.   The Court held unanimously that there had been a violation of Article 6 § 1 taken together with Article 6 § 3 (d). Noting that, on the basis of this finding, the applicant was entitled to a fresh trial under the Netherlands Code of Criminal Procedure, the Court rejected the applicant’s claim for pecuniary and non-pecuniary damages and awarded him EUR 4,190 for costs and expenses incurred in the Strasbourg proceedings. (The judgment is available only in English.)   Ionescu v. Romania (no. 38608/97)   Just satisfaction The applicant, Paul Ionescu, is a Romanian citizen who was born in 1934 and lives in Craiova (Romania). In his capacity as heir, he brought an action for recovery of possession of a house and adjacent land located in Bucharest. The Romanian courts upheld his request in a final and irrevocable judgment which, however, was overturned by the Supreme Court on an appeal submitted by the Public Prosecutor.   In a judgment of 2 November 2004, the European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 (right to a fair hearing) on account of the lack of a fair hearing and lack of access to a court. In addition, it found a violation of Article 1   of Protocol No. 1 (protection of property) and considered that the question of just satisfaction was not ready for decision.   In the judgment delivered today, the Court held unanimously that the disputed building and adjacent land were to be restored to the applicant within three months of this judgment becoming final. Failing such restitution, Romania was to pay the applicant EUR 100,000   in respect of pecuniary damage. The Court also awarded the applicant EUR 7,500 for non-pecuniary damage. (The judgment is available only in French.)     Violation Article 10 Abdullah Aydın v. Turkey (No. 2) (no. 63739/00)   Violation Article 6 § 1 The applicant, Abdullah Aydın, is a Turkish national who was born in 1944 and lives in Ankara. At the relevant time he was general secretary and a member of the general assembly of the association “The People’s House” in Keçiören.   In 1993 the participant participated, as the announcer, at a meeting on the theme of “Rights and Freedoms”, organised in Ankara by the association’s board. He addressed the crowd. His remarks referred, among other things, to the issue of rights and freedoms, and he criticised the military coup in 1980; he also alleged that there was a national problem in Turkey, namely “the issue of Kurdish nationality and the Kurdish struggle”.   The applicant was prosecuted for separatist propaganda, and was convicted and sentenced, among other things, to one year’s imprisonment in July 1998. Ruling after a referral from the Court of Cassation, Istanbul State Security Court upheld the sentence but ordered that it be suspended.   Relying on Article 10 (freedom of expression), the applicant alleged that his criminal conviction had infringed his right to freedom of expression. Under Article 6 (right to a fair trial), he also complained about the unfairness of the proceedings which led to his conviction, on the ground that it had been impossible to reply to the opinion submitted to the Court of Cassation by the Principal Public Prosecutor on the merits of his appeal on points of law.   The Court noted that the use of such words as “struggle” and “combat” conferred a certain virulence on the applicant’s words. However, it was clear that he was referring to a combat “for rights and freedoms”. Consequently, “the struggle” or “Kurdish resistance” were considered as part of this combat and could not, if read in context, be taken as incitation to the use of violence, hostility or hatred between citizens. They did not call for bloody revenge. In addition, the Court was of the opinion that the grounds given by the Turkish courts could not in themselves be considered sufficient to justify the interference in the applicant’s right to freedom of expression. It therefore concluded that there had been a violation of Article 10.   The Court reiterated that it had already held that, having regard to the nature of the Principal Public Prosecutor’s submissions and to the fact that defendants were not given an opportunity to make written observations in reply, the failure to communicate the Principal Public Prosecutor’s opinion entailed an infringement of Article 6 § 1. As it saw no reason to depart from that conclusion in this case, the Court concluded unanimously that there had been a violation of Article 6 § 1.   Under the heading of just satisfaction, it awarded the applicant EUR 5,000 in respect of pecuniary damage and EUR 4,000 for costs and expenses. (The judgment is available only in French.)     No violation Article 5 § 1 Çelik and Yıldız v. Turkey (no. 51479/99)   Violation Article 5 § 3 The applicants, Feridun Çelik and Mehmet Salih Yıldız, are Turkish nationals who were born in 1966 and 1949 respectively and live in Diyarbakır and Ankara. At the relevant time Mr   Çelik was mayor of Diyarbakır and Mr Yıldız was a member of the governing body of HADEP (the People’s Democracy Party, Halkin Demokrasi Partisi ).   Suspected of organising an illegal demonstration on the day following the arrest of Abdullah Öcalan, leader of the PKK (Workers’ Party of Kurdistan), the applicants were placed in police custody on 16 February 1999. They were then questioned by the police about their relationship with Abdullah Öcalan and the PKK.   Mr   Çelik was released on 22 February 1999 and Mr Yıldız on 26 February 1999. No proceedings were brought against them.   Relying on Article 5 §§ 1 and 3 (right to liberty and security), the applicants complained about the unlawfulness and duration of their detention in police custody.   The Court noted that, at the material time, the Turkish Government had received a large amount of specific information and several warnings which could objectively be regarded as serious given the particular circumstances of the time. The authorities’ suspicions had been based on tangible facts (denunciations and recordings of televised calls for violent demonstrations). Thus, the applicants’ deprivation of liberty had been intended to confirm or deny the suspicions concerning them. Accordingly, the Court concluded unanimously that there had been no violation of Article 5 § 1.   On the other hand, the Court could not accept that it had been necessary to detain Mr Çelik for six days and Mr Yıldız for ten days before they were “brought before a judge”. Consequently, the Court concluded unanimously that there had been a violation of Article 5 §   3. It awarded EUR 1,500 EUR to Mr Çelik and EUR 3,500 to Mr Yıldız for non-pecuniary damage and EUR 500 jointly for costs and expenses. (The judgment is available only in French.)     Violation Article 5 § 3 (first applicant) Gezici and İpek v. Turkey (no. 71517/01)   Violation Article 6 § 1   The applicants, Abdulcelil Gezici and Kutbettin İpek, are Turkish nationals who were born in 1968 and 1953 respectively and live in Van (Turkey). Suspected of belonging to and aiding and abetting the PKK, they were arrested in July 1994. In November 1999 they were convicted and sentenced to 12 years and six months’ imprisonment and to three years and nine months’ imprisonment respectively.   Relying on Article 6 § 1 (right to a fair trial within a reasonable time), they complained about the length and the unfairness of the proceedings which had resulted in their conviction. In addition, under Article 5 § 3 (right to be brought promptly before a judge), Mr Gezici complained about the length of his pre-trial detention.   The Court declared inadmissible the complaint concerning the lack of independence and impartiality of the State Security Court and admissible those complaints concerning the length of the proceedings and Mr Gezici’s pre-trial detention.   The Court noted that Mr Gezici had been held in pre-trial detention for more than five years and three months. It appeared that the State Security Court had dismissed the applicant’s requests for release and ordered his continued detention using an identical, not to say stereotyped, form of words, such as “the nature and/or classification of the offence with which he [was] accused”, “the state of the evidence” or “the contents of the file”. On four occasions it had ordered that the applicant be kept in detention without giving any grounds. Having regard to the circumstances of the case, the Court held unanimously that there had been a violation of Article 5 § 3.   The Court noted that the disputed proceedings had lasted almost six years and three months. Having regard to the circumstances of the case, it considered that such a duration was excessive and did not meet the “reasonable time” requirement. Accordingly it concluded unanimously that there had been a violation of Article 6 § 1.   Under Article 41, the Court awarded EUR 8,000 to Mr Gezici and EUR 4,000 to Mr İpek for non-pecuniary damage, as well as EUR 2,000 to the applicants jointly 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:     Violation Article 8   Violation Article 1 of Protocol No. 1   Violation Article 2 of Protocol No. 4 Forte v. Italy (no. 77986/01)   Violation Article 13 Antonio Forte is an Italian national who was born in 1933 and lives in Cassino (Italy). In February 1986 the Cassino Court judged the applicant to be personally bankrupt in his capacity as director of a commercial company.   The applicant complained under Article 8 (right to respect for correspondence), Article 1 of Protocol No. 1 (protection of property) and Article 2 of Protocol No.   4 (freedom of movement) of violations of his right to respect for his correspondence, peaceful enjoyment of his possessions and freedom of movement, particularly on account of the length of the proceedings. He also relied on Article 13 (right to an effective remedy).   The Court noted that the length of the bankruptcy proceedings, lasting about 15 years and two months, had meant that the fair balance which should have been struck between the general interest in repaying the bankruptcy creditors and the applicant’s individual interests, namely the right to peaceful enjoyment of his possessions, respect for his correspondence and his freedom of movement, had been upset. The interference in his rights and freedoms had been disproportionate to the aim pursued. Accordingly, the Court concluded unanimously that there had been a violation of Article 1 of Protocol No. 1, of Article 8, Article 2 of Protocol No. 4 and Article 13.   Under Article 41, the Court awarded the applicant EUR 33,000 for non-pecuniary damage. (The judgment is available only in French.)     Akkoç v. Turkey (no. 50037/99)   Violation Article 1 of Protocol No. 1 The applicant, Talattin Akkoç, is a Turkish national who was born in 1957 and lives in Kocaeli (Turkey).   On 14 December 1995 the Kocaeli Provincial Private Administration Office ( Kocaeli İl Özel İdare Müdürlüğü ) expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the plot of land and the relevant amount was paid to him on 22 November 1996.   On 20 February 1998 the Gebze Civil Court of First Instance ordered the administration to pay the applicant 4,619,997,360 Turkish liras (TRL) plus interest at the statutory rate, running from 22 November 1996, the date on which the ownership of the property was transferred to the administration. The amount due was paid with interest on 29 July 1999.   The applicant complained about the rate of interest payable on the additional compensation for the expropriation of a plot of land was too low and that the expropriating authority had delayed in settling the relevant amounts. He relied on Article 1 of Protocol No. 1 (protection of property).   The Court found that the delay in paying for the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner to sustain loss additional to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court found that the applicant had to bear an individual and excessive burden that upset the fair balance that must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1. The applicant was invited to submit his claims for just satisfaction, but he did not do so within the required time-limits. Accordingly, the Court makes no award under Article 41 of the Convention. (The judgment is available only in English.)   Violation Article 6 § 1 Dede Taş v. Turkey (no. 62877/00) Doğru v. Turkey (no. 62017/00) Dede Taş is a Turkish national who was born in 1964 and lives in Albertslund (Denmark); Ali Doğru is a Turkish national who was born in 1972 and lives in İzmir (Turkey). In 1999 Mr Taş was sentenced to nine years’ imprisonment for drug trafficking and in 1998 Mr   Doğru was sentenced to three years and nine months’ imprisonment for membership of an armed gang.   Relying on Article 6 § 1 (right to a fair trial), the applicants complained about the unfairness of the proceedings which had resulted in their convictions, particularly on account of the presence of a military judge on the bench of the state security courts which tried them.   The Court held, unanimously in both cases, that there had been a violation of Article 6 §   1 with regard to the complaint alleging the state security courts’ lack of independence and impartiality. As to the other complaints submitted by Mr Doğru, alleging the unfairness of the proceedings, the Court pointed out that a court whose lack of independence and impartiality had been established could not in any circumstances guarantee a fair trial to the persons subject to its jurisdiction; accordingly, it held that it was unnecessary to examine those complaints.   The Court considered that these judgments constituted in themselves sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. It awarded EUR 500 to Mr   Taş and EUR 1,500 EUR to Mr Doğru for costs and expenses. (The judgments are available only in French.)   ***   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.