CEDH · PRESS;GENERAL;ENG — 22 novembre 2005

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Estonia (application no 13249/02)   Violation of Article 6 §§ 1 and 3(d) The applicant, Hermo Taal, is an Estonian national who was born in 1954 and lives in Tallinn.   In June 2000 the applicant was taken into custody and charged with having made phone calls threatening to explode a bomb in a supermarket called Pirita Selver if his demands for money were not met. He was subsequently convicted of the charge and sentenced to three years’ imprisonment by Tallinn City Court. The court relied on the testimony of witnesses given during the preliminary investigation as well as on the transcripts of tape recordings of telephone conversations.   The applicant appealed to Tallin Court of Appeal on the ground that, among other things, the city court had not heard any of the witnesses and that his lawyer’s request to summon the witnesses had been denied. His appeal was dismissed and he was refused leave to appeal to the Supreme Court.   The applicant complained that he did not have a fair trial and that his rights of defence had been violated since he had had no opportunity to examine or have examined, both during the investigation and at the trial, any of the witnesses against him. He relied on Article 6 §§ 1 (right to a fair trial) and 3 (d) (right to obtain attendance and examination of witnesses) of the European Convention on Human Rights.   The European Court of Human Rights, having regard to the fact that neither the applicant nor his representative were enabled to question any of the witnesses at any stage of the proceedings and that none of the witnesses were ever examined by the courts, found that the applicant’s defence rights had been restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention.   The Court held unanimously that there had been a violation of Article 6 § 1 and Article 6 § 3 (d) and awarded the applicant 6,500   euros   (EUR) for non-pecuniary damage and EUR   2,300 for costs and expenses. (The judgment is available only in English.)   Reigado Ramos v. Portugal (no. 73229/01)   Violation of Article 8 The applicant, José Manuel Reigado Ramos, is a Portuguese national who was born in 1964 and lives in Lisbon. In 1995 he had a daughter, Inês, with M.O. The couple separated when the child was seven months old.   In February 1997 the applicant brought proceedings for the award of parental responsibility for the child. In that context an agreement was drawn up giving custody of the child to her mother and granting the applicant a right of access. Under the terms of the agreement, Inês was to spend two weekends a month and part of the school holidays with him.   In February 1998 the applicant, who had not seen his daughter since October 1997, brought proceedings seeking the judicial enforcement of the parental responsibility agreement, which was not being observed by M.O. There was no sign of M.O. at the address she had given. On a number of occasions during the proceedings, the court sought police assistance in attempting to trace the applicant’s former partner. Having been informed that M.O. was in the Azores, the Cascais Court of First Instance invited her to respond to the applicant’s application. The court subsequently ordered an inquiry by social services into the circumstances in which M.O. and the child were living. However, the inquiry was never carried out, as M.O. failed to keep any of the appointments made for her.   On 3 April 2003 the court found M.O. to have been in breach of the access arrangements and ordered her to pay a fine of EUR 249.40 and the same amount in damages. The applicant, meanwhile, had lodged a criminal complaint against M.O. alleging child abduction. In March 2001 the public prosecutor decided not to proceed with the complaint.   The applicant alleged that the fact that his right of access had not been enforced amounted to a violation of Article 8 (right to respect for private and family life). He complained of the inability of the Portuguese authorities to enforce his right, and of a lack of diligence on their part.   The Court noted that it had taken the domestic court over ten months to get in touch with M.O. after the applicant had begun proceedings. It considered that the court could have taken steps to track down M.O. sooner. The enforcement proceedings had lasted five years and one month; virtually all of that time had been taken up with the court’s attempts to trace M.O. and give her notice of the various steps taken in the proceedings.   In the absence of any suggestion or proposal from the public prosecutor’s office or the court itself aimed at bringing the interested parties together or engaging the active participation of social services in resolving the issue, the Court took the view that the Portuguese authorities had failed in their duty to take practical steps to persuade those concerned to cooperate more closely while having regard to the overriding interests of the child. The authorities’ handling of the situation had allowed it to become entrenched, in defiance of the judicial decisions, while the consequences for the applicant, who was deprived of contact with his young daughter, became more serious as time progressed. In that connection the Court pointed out that Mr Reigado Ramos had last seen his daughter on 4 October 1997, when she had been just two years old, and that it had taken over five years for Cascais Court of First Instance to deliver its decision.   The lack of cooperation by the child’s mother did not dispense the Portuguese authorities from their obligation to do everything possible to allow the family ties to be maintained. The enforcement proceedings had resulted only in Inês’s mother’s being ordered to pay a modest fine and quite a small sum in compensation.   In the circumstances, the Court considered that Portugal had not taken adequate and sufficient action to enforce the applicant’s right of access, thereby infringing his right to respect for his family life. It therefore held, by six votes to one, that there had been a violation of Article 8.   The applicant had not submitted a claim for just satisfaction to the Court within the time allowed. Consequently, the Court decided not to make any award under Article 41. (The judgment is available only in French.)     No violation of Article 2 (deaths of applicants’ relatives)   Violation of Article 2 (inadequate investigation)   No violation of Article 3   Violation of Article 5   No violation of Article 8 Belkiza Kaya and Others v. Turkey (nos. 33420/96 and 36206/97) Violation of Article 13 The ten applicants, Belkıza Kaya, Meryem Demir, Emine Erbek, Reşit Özdemir, İbrahim Yılmaz, Osman Özdemir, Ramazan Kaya, Osman İlhan and Selahattin Nas and İbrahim Kaya, are Turkish nationals born in 1972, 1963, 1971, 1973, 1962, 1960, 1967, 1955, 1968 and 1972 respectively. They are relatives of Neytullah İlhan, Abdullah İlhan, Halit Kaya, Ahmet Kaya, Ali Nas, Lokman Özdemir, Hamit Yılmaz, Abdulhalim Yılmaz and Beşir Nas, who died while in police custody.   The facts were disputed between the parties.   The applicants contended that, in January 1996, their relatives were arrested and taken into police custody in Taşkonak gendarmerie station, after their names had been given to gendarmes questioning a person suspected of aiding and abetting the PKK. While the detainees were being transferred to Koçyurdu gendarmerie station on 15 January 1996, the minibus they were travelling in came under fire on the road to Güçlükonak. The gendarmes travelling in a separate escort vehicle returned the fire. The shooting, which lasted around 30 minutes, ended with the minibus being destroyed and its occupants killed. The body of the driver, Beşir Nas, was found a few metres from the minibus, with gunshot wounds. The bodies of the other ten people in the minibus were burnt to ashes.   According to the report on the scene of the incident, 27 cartridges were found around the vehicle. Several marks made by bullets and rockets were found on the vehicle, and three rockets found nearby. The public prosecutor’s office opened an investigation, in the course of which a number of statements were taken.   The applicants maintained that their relatives were the victims of an extrajudicial execution and that the authorities had failed to conduct a serious inquiry into their deaths. They also complained about the suffering they themselves had undergone as a result of the death of their relatives, and contended that the latter had been detained in breach of the Convention. The applicants relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair hearing), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 18 (limitation on use of restrictions on rights). In addition, relying on Article 8 (right to respect for private and family life), İbrahim Kaya complained in particular that he had been unable to provide his father with a proper religious funeral and had been unable to return to his village since the incident.   The Court considered that Osman Özdemir could not claim to be a “victim” for the purposes of Article 34 of the Convention, and therefore found his application inadmissible.   As to the allegation that the applicants’ relatives had been the victims of an extrajudicial execution, the Court considered, in view of the material before it, that the assertions were not supported by concrete and verifiable facts. They were not corroborated in conclusive fashion by eyewitness statements or other evidence and were based more on hypothesis and speculation than on reliable evidence.   On the issue as to whether Turkey had taken all the necessary steps to protect the lives of the applicants’ relatives, the Court acknowledged the difficult situation in south-east Turkey, where a state of emergency had been in force at the time of the events, and was prepared to accept, in general terms, that the risk of an incident had been higher in that region than in the rest of the country. It was not satisfied that the measures taken by the security forces with regard to the custody arrangements and the arrangements for escorting and transferring the detainees were open to question. Four guards had accompanied the detainees in the minibus, which had been escorted by a gendarmerie vehicle, and the area had been under the control of the military. As the presence of terrorists had been detected only minutes before the incident, the authorities could not be blamed for failing to prevent the departure of the convoy or alter the route. Nor could they be criticised for not having taken additional measures, since the existence of a real and substantial risk had not been sufficiently foreseeable.   The Court therefore held, unanimously, that there had been no violation of Article 2 in that respect.   As to the nature of the investigation into the events, while it was true that some steps had been taken, the Court noted a number of shortcomings. First, it pointed out that it was essential to conduct a full autopsy in judicial cases. Second, the investigations at the scene of the incident had not been conducted with the thoroughness warranted by a case of that nature. Only after being informed of the application by the European Court, furthermore, had the investigating authorities looked into the police custody and the questioning of those who had died in the attack. Finally, with one exception, no statements had been taken from the gendarmes responsible for escorting the minibus until more than six years after the incident.   In those circumstances, the Court considered that the Turkish authorities had not conducted an adequate and effective investigation into the deaths of the applicants’ relatives. It therefore held, unanimously, that there had been a violation of Article 2.   The Court did not doubt the deep suffering caused to the applicants by the death of their relatives. However, it reiterated that their allegations of an extrajudicial execution by agents of the State had not been proven. In addition, it did not appear from the material in the case file that the level of severity required by Article 3 in situations of that particular kind had been attained. The Court therefore held, unanimously, that there had been no violation of Article 3.   As to the detention of those in question, while the parties agreed that they had been taken into police custody, they differed as to the date on which the custody had commenced. No official record existed of their being placed in police custody. In the view of the Court, failure to record the fact that an individual had been taken into police custody and to provide details such as the date of the arrest, the place of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it should be regarded as incompatible with the very purpose of Article 5. Furthermore, the Government stated that those concerned had been taken into police custody on the basis of statements made by an individual, but failed to produce a copy of the statement in question. Nor did the person’s name appear on any record as having been lawfully detained. In those circumstances the Court held, unanimously, that there had been a violation of Article   5.   Noting that İbrahim Kaya had not supplied any evidence in support of his allegations, the Court held, unanimously, that there had been no violation of Article 8.   With regard to the complaints under Articles 6, 13 and 14, the Court decided to examine them under Article 13. Having found that the judicial investigation had not provided an adequate basis on which to establish the circumstances in which the applicants’ relatives had died, the Court held that there had been a violation of Article 13, the requirements of which went beyond the obligation to conduct an inquiry imposed by Article 2.   In the light of all its findings, the Court did not consider it necessary to examine the complaint under Article 18 separately.   The Court awarded each of the remaining nine applicants EUR 15,000 for non ‑ pecuniary damage. By way of costs and expenses, it awarded EUR 5,160 to İbrahim Kaya and EUR 3,000 to the other eight applicants jointly. (The judgment is available only in French.)     Violation of Article 10 Emire Eren Keskin v. Turkey (no. 49564/99)   Violation of Article 6 § 1 Emire Eren Keskin is a Turkish national who was born in 1959 and lives in Istanbul. At the relevant time she was a practising lawyer.   In April 1995 the bimonthly review Medya Güneşi (The Sun of Medya – although, literally, the name Medya translates into “media”, the use of that term refers to the country of the Meds, the mythical country of the Kurds) published an interview with the applicant. The applicant described the actions waged by the Turkish authorities in the south-east region of the country as “war” and “barbarism”, and there was a definite aggressiveness and a virulence to the terms used in the article.   The applicant was prosecuted for disseminating separatist propaganda through the medium of the press and sentenced by Istanbul State Security Court to a year and four months’ imprisonment, which was reduced to one year, one month and ten days on account of her behaviour during the hearing. In November 1999 the public prosecutor deferred execution of the applicant’s sentence under Law no. 4454, which provides for a deferment of execution of sentences for offences committed through the medium of the press.   The applicant complained that her criminal conviction had breached Article 10 (freedom of expression). She also complained that she had not been given a fair hearing, in breach of Article 6 § 1, particularly because of the presence of a military judge on the bench of the state security court that had tried and convicted her.   The Court held that the reasons for the domestic courts’ decisions could not be regarded as sufficient in themselves to justify the interference with the applicant’s right to freedom of expression. The article in question had reflected an intransigent attitude on the part of one of the parties to the conflict rather than incitement to violence. The Court also noted the severity of the penalty imposed on the applicant. In those circumstances it held that the applicant’s conviction was disproportionate to the aims pursued and accordingly not “necessary in a democratic society” There had therefore been a breach of Article 10.   As the Court had already had the opportunity of doing in many similar cases, it also held, unanimously, that there had been a breach of Article 6 § 1 regarding the complaint of a lack of impartiality and independence of the state security court. With regard to the other complaint of unfairness of the proceedings, 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 held that it was not necessary to examine it.   Under the head of just satisfaction, the Court awarded the applicant EUR 7,500 for non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1   No violation of Article 2 of Protocol No. 4 Antonenkov and Others v. Ukraine (no. 14183/02)   The applicants, Aleksey Anatolyevich Antonenkov, Aleksey Anatoliyevich Diukin and Vladimir Petrovich Stolitniy, are all Ukrainian nationals who were born in 1967, 1959 and 1970 respectively. They all live in Kyiv.   On 26 June 1996 criminal proceedings against the applicants were instituted and they were subsequently arrested on suspicion of fraud and theft. In April and May 1997   Shevchenkovsky District Court of Kyiv released them on an undertaking not to abscond.   Between April 1997 and April 2002 a total of 77 hearings were listed, many of which were adjourned or cancelled. The district court remitted the case twice.   On 19   July 2002 the district court terminated proceedings concerning the charges of fraud embezzlement and forgery. Criminal proceedings for theft are still pending against   Mr   Antonenkov and Mr   Diukin.   The applicants complained about the length of criminal proceedings brought against them for fraud and theft and the lengthy restriction on their freedom of movement as a result of the undertaking not to abscond. They relied on Article 6 § 1 (right to a fair trial within a reasonable time) and Article 2 of Protocol No. 4 (freedom of movement).   The Court noted that in the case of   Mr Stolitniy   the proceedings had lasted   for six years and one month and that in the cases of Mr Antonenkov and Mr   Diukin   they had lasted for   nine years and four months. The Court found that many of the delays were attributable to the conduct of the domestic authorities and that the proceedings had not been completed within a reasonable time, in violation of Article 6 § 1.   As to the fact that pending trial the applicants were obliged to seek permission from the court each time they wished to leave their places of permanent residence, the Court found that the impugned measure pursued a legitimate aim and was proportionate. It therefore found no violation of Article 2 of Protocol No. 4.   The Court held, unanimously, that there had been a violation of Article 6 § 1 and that there had been no violation of Article 2 of Protocol No. 4. It awarded Mr Stolitny EUR   2,000 and Mr   Antonenkov and Mr Diukin EUR   3,000 each for non-pecuniary damage. Each applicant received EUR   1,000 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:   Freymuth and Golinelli v. France (nos. 65823/01 and 65273/01)        Violation Article 6 § 1 The applicants, Patrick Golinelli and Patrick Freymuth, are French nationals who were born in 1951 and 1954 and live in Lantefontaine and Marly (France) respectively. Mr Golinelli was a road haulier on behalf of a company belonging to Mr Freymuth.   In August 1996 Thionville Criminal Court found the applicants guilty of unlawfully importing goods for which proof of origin had to be supplied, and sentenced them both to payment of a criminal and a customs fine. A second appeal lodged by the applicants was dismissed by the Court of Cassation on 21 June 2000.   Relying on Article 6 § 1 (right to a fair hearing), the applicants complained of the unfairness of the proceedings before the Court of Cassation on account of the failure to communicate the submissions of the advocate-general prior to the hearing and their inability to reply on account of not having been summoned to the hearing.   The Court declared the application admissible regarding the failure to communicate the submissions of the Advocate-General, the inability to reply and the failure to issue a summons to the hearing. It held, unanimously, that there had been a breach of Article 6 § 1 on account of the failure to inform the applicants of the tenor of the Advocate-General’s submissions, to which they had therefore been unable to reply. Having regard to that finding, it considered that there was no need to examine separately the complaint of the failure to summon the applicants to the hearing.   The Court held that the finding of a breach in itself constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. (The judgment is available only in French.)       Violation of Article 6 § 1 Bulut v. Turkey (no. 49892/99) Ebru Demir v. Turkey (no. 60262/00) Yağiz and Others v. Turkey (no. 57344/00) In these three cases the applicants were brought before a state security court and given prison sentences for belonging to or assisting illegal armed organisations. Relying on Article 6 § 1 (right to a fair hearing), they complained that they did not have a fair hearing on account, in particular, of the presence of a military judge on the bench of the State Security Courts. In the Yağiz and Others case, the applicants also complained of the length of the proceedings against them.   The Court held, unanimously, that there had been a breach of Article 6 § 1 regarding the complaint of the lack of impartiality and independence of the state security court. With regard to the other complaints based on the unfairness of the proceedings, it reiterated 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 and that, accordingly, it was unnecessary to examine them.   Regarding the complaint based on the excessive length of the proceedings in the case of Yağiz and Others , the Court noted that the proceedings had lasted five years and four months for one of the applicants and four years and four months for the other applicant. Having regard to the circumstances of the case and the overall length of the proceedings, the Court considered that such periods had not exceeded the “reasonable time” and therefore held that there had not been a breach of Article 6 § 1 in that respect.   Regarding the application of Article 41 (just satisfaction), the Court held, unanimously, in each case that the judgments amounted in themselves to sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It reiterated that where it found that an applicant had been convicted by a tribunal that was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress would, in principle, be to order a retrial in due course by an independent and impartial tribunal. In respect of costs and expenses, the Court awarded EUR 1,500 to Ebru Demir and EUR 500 to the applicants jointly in the case of Yağiz and Others .   (The Bulut v. Turkey judgment is available only in English and the Yağiz and Others and Ebru Demir v. Turkey judgments only in French.)       Violation of Article 6 § 1   Violation of Article 1 of Protocol No. 1   Violation of Article 13 Gayday v. Ukraine (no. 18949/03) Kozhanova v. Ukraine (no. 27349/03) Krutko v. Ukraine (no. 22246/02) Litovokina v. Ukraine (no. 35741/04) Melnikova v. Ukraine (no. 24626/03) Miroshnichenko v. Ukraine (no. 29420/03) Ovcharenko v. Ukraine (no. 5578/03) Romanchenko v. Ukraine (no. 5596/03) Tsanga v. Ukraine (no. 14612/03) The applicants all complained about the lengthy failure to enforce various judgments awarding them compensation, due to lack of State funds. They all relied on Article   6 §   1 (access to court) with the exception of Tsanga who only relied on Article   1 of Protocol No.   1 (protection of property). Gayday, Kozhanova, Litovokina, Melnikova and Romanchenko also relied on Article   1 of Protocol No.   1. Ovcharenko relied on Article 13 (right to an effective remedy).   The Court unanimously declared all the cases admissible except Kozhanova and Ovcharenko which were declared partially admissible.   Concerning Article 6 § 1, the Court observed that it was not open to a State authority to cite lack of funds as an excuse for not honouring a judgment. The Court noted that the judgments in question were not enforced for long periods of time, a situation for which the Government had not provided any plausible justification. The Court therefore held, unanimously, that there had been a violation of Article   6 §   1 in all of the cases except Tsanga and a violation of Article 1 of Protocol No. 1 in the cases of Tsanga , Gayday, Kozhanova, Litovokina, Melnikova and Romanchenko .   In the case of Ovcharenko the Court found that there was no effective remedy available to redress the damage created by the delay in the enforcement of the judgment in question. There had therefore been a violation of Article 13.   It awarded the applicants sums ranging from EUR   990 to EUR   4,000 for pecuniary and non-pecuniary damages, and EUR   200 for costs and expenses in the case of Melnikova . (The judgments are only available in English with the exception of Tsanga which is only available 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.