CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 décembre 2005

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Moldova (No. 2) (no. 19960/04)   Violation of Article 1 of Protocol No. 1 The applicant, Serghei Popov, is a Moldovan national who was born in 1925 and lives in Chişinǎu.   In 1941 the Soviet authorities nationalised his parents’ house. The ownership of the property was restored to him by a final judgment delivered on 5 November 1997. In April 2004 the existing occupants of the house lodged a request for revision of that judgment in view of new information that had become available to them. The information to which they referred appeared on certificates from the National Archives and from the Land Register dated April and May 2004 and an issue of the Municipal Official Gazette of 1940. In view of the new information, the Court of Appeal extended the time-limit for the lodging of the request, quashed the previous judgment and re-opened the proceedings.   The applicant complained that his right to a fair hearing and his right to the peaceful enjoyment of his possessions had been breached as a result of the quashing of a final judgment in his favour. He relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights.   The European Court of Human Rights considered that the revision procedure was in effect an appeal in disguise whose purpose was to obtain a fresh examination of the matter. It could not be said that an issue of the Official Gazette could qualify as “new facts or circumstances that were unknown and could not have been known earlier by the parties to the proceedings” which were grounds for revising a final judgment according to the procedure set down in Moldovan law. The Court found that by granting the defendants’ revision request the Court of Appeal infringed the principle of legal certainty and the applicant’s right to a court.   Moreover, by not giving any reasons for extending the defendant’s time limit for revision, the court also breached the applicant’s right to a fair hearing.   The Court recalled that the sums awarded to the applicant by the judgment in question could be considered a possession. Quashing the judgment after it had become final therefore constituted an interference with the applicant’s right to the peaceful enjoyment of his possession.     There being no public interest defence justifying that interference, the Court also held that there had been a violation of Article 1 of Protocol No 1.   The Court held by six votes to one that there had been a violation of Article 6 § 1 and Article   1 of Protocol No. 1 and awarded the applicant EUR 3,365 in respect of pecuniary damage, EUR 3,000 in respect of non-pecuniary damage and EUR 715 for costs and expenses. (The judgment is available only in English.)     Violation of Article 8 Drozdowski v. Poland (no. 20841/02)   Violation of Article 34 The applicant, Jacek Drozdowski, is a Polish national who was born in 1965 and lives in Brzeg (Poland).   On 19 July 2000 the Court received a letter from the applicant dated 26 May 2000 who was on remand charged with robbery. Some of the pages were stamped “censored”, signed by a judge and dated 14 July 2000. On the last page two words were crossed out with felt-tip pen and the envelope which had been opened was resealed with tape.   The Court considered it appropriate to raise ex officio the issue of Poland’s compliance with Article 8 (right to respect for correspondence) and Article 34 (right of individual petition) on account of monitoring of the applicant’s correspondence.   The Court recalled that it was of utmost importance that applicants should be able to communicate freely with the Court. The Court found no compelling reasons why the applicant’s correspondence with the Court should have been monitored. It therefore followed that the interference complained of was not necessary in a democratic society. In consequence the Court held, unanimously, that there had been a violation of Article 8.   In view of those considerations and, taking into account the fact that the applicant’s letter was posted with a two-month delay and a few words were obscured, the Court held, unanimously, that there had also been a violation of Article 34.   The Court awarded the applicant EUR 500 in respect of non-pecuniary damage. (The judgment is available only in English.)   Wasilewski v. Poland (no. 63905/00)   Violation of Article 8 The applicant, Adam Wasilewski, is a Polish national who was born in 1974 and lives in Brwinów (Poland).   While the applicant was in detention on remand, a letter dated 24 August 1998, sent by the European Commission of Human Rights to the applicant, was intercepted and read by the prosecutor conducting the investigations in his case. The applicant requested that criminal proceedings be instituted in respect of the interference with his correspondence. In May 2002 Pruswków District Court found that no criminal offence had been committed since the prosecutor was authorised by law to open and read the letter and decide whether to forward it to the applicant.   The applicant complained that the letter from the European Commission of Human Rights had been intercepted, opened and read. He relied on Article 8 (right to respect for correspondence).   The Court found that the control of the content of the correspondence from the Commission was not carried out in the applicant’s presence as required by Polish law as applicable at the time. The Court therefore held, unanimously, that there had been a violation of Article 8 and awarded the applicant EUR   500 in respect of non-pecuniary damage. (The judgment is available only in English.)   Hornáček v. Slovakia (no. 65575/01)   Violation of Article 6 § 1 The applicant, Štefan Hornáček, is a Slovakian national who was born in 1950 and lives in Turany (Slovakia).   On 10 December 1997 the applicant’s lawyer sent an objection to a payment order issued to his client by Martin District Court. He sent the objection by registered mail. The court, referring to the date stamped on the document, held that the applicant had filed the objection one day after the time-limit had expired and dismissed the case. The applicant appealed, submitting as evidence a receipt of postage on which was written the date when the mail was sent and the addressee but not the contents of the envelope. The employee of the district court who had stamped the mail was heard before the court. When questioned about the postage receipt, she pointed out that it was impossible to determine the contents of the letter from the receipt.   The Supreme Court upheld the previous judgments.   The applicant complained that the courts had violated his right of access to a court in that they had found that his remedy against a payment order had been filed belatedly. He relied on Article 6 § 1 (right to a fair hearing).   The Court noted that the courts had made no attempt to establish when the registered mail had been delivered to the district court and in which case file it had been included, preferring instead to rely on the court employee’s statement. The Court therefore considered that the domestic courts had failed to ensure a reasonable relationship of proportionality between the legitimate aim of ensuring compliance with the formal requirements for filing the remedy in issue and the applicant’s right of access to a court.   The Court held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 2,000 in respect of non-pecuniary damage and EUR 360 for costs and expenses. (The judgment is available only in English.)   Mikulová v. Slovakia (no. 64001/00)   Violation of Article 6 § 1 The applicant, Eva Mikulová, is a Slovakian national who was born in 1952 and lives in Prešov (Slovakia).   The applicant had lodged unsuccessful appeal proceedings before Prešov Regional Court concerning the termination of her employment. The district court was charged with sending the judgment to the applicant by registered mail. The Post Office, however, could not serve the document on the applicant’s lawyer who was on holiday at the time and the employee authorised to receive mail in his absence had fallen ill. It was therefore deposited at the Post Office on 4 August 1999.   The applicant filed an appeal on points of law. The district court submitted the appeal to the Supreme Court accompanied by a letter stating that the Regional court’s judgment had become final on 13 August 1999 and that the appeal on points of law had been filed within one month from that date as required by the law.   However, the Supreme Court held that, since the addressees had not withdrawn the mail within three days from its deposit at the Post Office the third day of that period, that is 7 August 1999, was to be considered as the date of service. The one-month time-limit for filing an appeal on points of law had therefore expired on 7 September 1999 and the court rejected her appeal on points of law.   The applicant complained that her right to a fair hearing by a tribunal, within a reasonable time, had been violated. She relied on Article 6 § 1 (right to a fair hearing).   The Court noted that the district court had indicated in a letter accompanying the judgment that the appeal on points of law had been filed within the one-month time-limit and that the Supreme Court, without consulting the parties, had reached a different conclusion.   The Supreme Court maintained that the appeal judgment had been served on the parties by default on 7 August 1999 and had become final on that date. However, according to Slovakian law, service by default was only possible if the persons authorised to receive the mail were resident at the point of delivery.   The Supreme Court’s decision resulted in the applicant’s appeal on points of law being rejected as having been filed beyond the statutory time-limit. The applicant was thereby prevented from having the merits of her case determined. The Court therefore concluded that her right of access to a court had not been respected.   The Court held unanimously that there had been a violation of Article 6 § 1, and awarded the applicant EUR 4,000 for non-pecuniary damage and EUR 285 for costs and expenses. (The judgment is available only in English.)     Violation of Article 6 § 1 Ağaoğlu v. Turkey (no. 27310/95)   Violation of Article 8 The applicant, Mehmet Şirin Ağaoğlu, is a Turkish national who was born in 1945 and lives in Istanbul.   The applicant and others suspected of drug trafficking were arrested and taken into police custody on 20 September 1991. According to the police, the applicant had a number of telephone conversations with another accused, B.K., about the delivery of 40 packets of heroin. The applicant denied the charges and admitted calling B.K., but with a view to buying money in various foreign currencies from him. The applicant was interviewed by a judge and released on bail on 4 October 1991.   On 20 January 1994 Istanbul State Security Court found the applicant guilty of organised drug trafficking and sentenced him to 18 years’ imprisonment. The court based its verdict on the coded telephone conversations between B.K. and the applicant and on a confession made by B.K. Despite an opinion in which the Principal Public Prosecutor called for Mr Ağaoğlu’s acquittal, the Court of Cassation upheld his conviction. The Principal Public Prosecutor also applied to the combined Criminal Sections for rectification of the judgment. He called for the applicant’s acquittal, contending that the evidence against him in the form of statements made by his fellow-accused had been neither consistent nor relevant and that the telephone tapping had been neither legal nor reliable. That application was refused on 26 December 1994.   The applicant complained that the proceedings which had led to his conviction had been unfair, maintaining that he had been convicted on the basis of unlawful interception of his telephone calls. He relied on Article 6 (right to a fair trial) and Article 8 (right to respect for private life).   The Court held unanimously that there had been a violation of Article 6 § 1 as regards the complaint that the state security court had not been independent and impartial. As to the other complaints about the unfairness of the proceedings, the Court reiterated that a court whose lack of independence and impartiality had been established could not in any event guarantee a fair trial to the persons subject to its jurisdiction. It therefore took the view that it was not necessary to examine those complaints.   The Court further noted that, at the material time in Turkey, there was no written law clearly governing the interception of telephone calls. The judge’s decision authorising the tapping ex post facto had been based on the provisions of the Code of Criminal Procedure dealing with the seizure of letters, telegrams and other messages addressed to accused persons, which had been applied by analogy. Consequently, that measure could not be regarded as having been “in accordance with the law” within the meaning of the Convention. The Court accordingly held unanimously that there had been a violation of Article 8.   The Court considered that the present judgment constituted in itself sufficient just satisfaction for any damage sustained by the applicant. (The judgment is available only in French.)     Violation of Article 6 § 1 Fikret Şahin v. Turkey (no. 42605/98)   Violation of Article 10 The applicant, Fikret Şahin, is a Turkish national who was born in 1964 and lives in Ankara. He is a member of the DBT (Party for Democracy and Peace).   On 1 September 1996 the applicant made a speech on the occasion of the “World Day of Peace and Freedom” organised on the initiative of various non-governmental organisations and political parties. He spoke of the damage caused by the armed conflict in south-eastern Turkey and criticised the Government’s position on the matter.   The applicant was prosecuted on the charge of inciting the people to hatred and hostility on the basis of a distinction grounded on allegiance to a particular social class, race and region. He was accused among other things of describing the battle against the PKK as a war against part of the Turkish people. On 21 October 1977 Ankara State Security Court found the applicant guilty as charged and sentenced him to one year’s imprisonment and payment of a fine. He appealed on points of law, but without success.   The applicant submitted that his criminal conviction had infringed his right to the freedom of expression. He further complained that he had not had a fair trial. He relied on Articles 10 (freedom of expression) and 6 (right to a fair trial).   The Court considered that the grounds given by the domestic courts could not in themselves be regarded as sufficient to justify the interference with the applicant’s right to freedom of expression. Although the remarks made in the offending speech were particularly bitter and thus gave the applicant’s words a hostile connotation, they did not incite violence, armed resistance or an uprising, and they did not amount to hate-speech, which, in the Court’s opinion, was the essential element to be taken into consideration. As regards the nature and severity of the penalties imposed, the Court noted that the applicant had been sentenced, among other penalties, to one year’s imprisonment, of which he had served about five months.   That being so, it held that the applicant’s conviction had been disproportionate to the aims pursued and was accordingly not “necessary in a democratic society”. There had therefore been a violation of Article 10.   The Court further held unanimously that there had been a violation of Article 6 § 1 as regards the complaint that the state security court had not been independent and impartial. As to the other complaint about the unfairness of the proceedings, the Court reiterated that a court whose lack of independence and impartiality had been established could not in any event guarantee a fair trial to the persons subject to its jurisdiction. It therefore took the view that it was not necessary to examine that complaint.   By way of just satisfaction, the Court awarded Mr Şahin EUR 4,500 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1 Iletmiş v. Turkey (no. 29871/96)   Violation of Article 8 The applicant, Nazmi İletmiş, is a Turkish national who was born in 1953. In 1975 he went to Germany and enrolled at a university. He married a Turkish national in 1979 and the couple had two children, born in 1981 and 1986, who attended school in Germany.   In 1984 a judicial investigation was opened in respect of the applicant, who was accused of acts contrary to the national interest committed abroad. He was suspected of being a member of the Union of Turkish Students and a sympathiser of the Kurdistan Committee, having links with HEVRA (the European Organisation of Kurds of Revolutionary Turkey) and of being one of the leaders of KOMKAR (the Federation of Workers’ Associations of Federal Germany).   The applicant was arrested on 21 February 1992 while on a trip to Turkey to visit his family, and taken into police custody for seven days. His passport was confiscated. On 27 February the applicant was released but his passport was not returned to him. Following the applicant’s arrest in Turkey his family left Germany to join him.   In April 1992 the applicant was charged with separatist activities to the detriment of the State and committed for trial in the Elaziğ Assize Court. During his trial he applied several times to the provincial governor’s office for a passport. These applications were refused. He was told that his passport could be handed over to him if he produced a certificate from the court in which he was standing trial stating that there was no reason why he could not be permitted to leave Turkey. However, when he applied to the Assize Court he received the reply that it had not issued any exclusion order and that it could only supply him with a certificate to the effect that the proceedings against him were continuing.   In the absence of evidence against him, the Assize Court acquitted the applicant on 1 July 1999. A passport was subsequently issued to him and the applicant returned to Germany with his family. He is currently living in Turkey with his wife; their children, who have reached the age of majority, live in Germany.   Relying on Article 6 § 1 (right to a fair trial within a reasonable time), the applicant complained of the length of the criminal proceedings against him. He further submitted that the prohibition on leaving Turkey had breached Article 8 (right to respect for private and family life).   The Court noted that the proceedings complained of had lasted for about 15 years at one level of jurisdiction. Having regard to the circumstances of the case, it considered that such a period was excessive and failed to satisfy the “reasonable time” requirement. The Court accordingly concluded unanimously that there had been a violation of Article 6 § 1.   The Court considered that the confiscation of the applicant’s passport and the refusal for years to return it constituted interference with the exercise of his right to respect for his private life, inasmuch as it had noted the existence of sufficiently strong personal ties which were likely to be seriously affected by application of that measure. The interference had been in accordance with the law and pursued a legitimate aim.   As to whether the interference was “necessary in a democratic society”, the Court noted that during the 15 years of proceedings there was never any evidence in the case file of a danger to national security or the risk of a criminal offence. Moreover, the applicant had no criminal record and was ultimately acquitted. Lastly, the Court referred to the personal and family situation of the applicant at the time when he was living in Germany and took into consideration the uncertainty and upheaval that the indefinite continuation of the disputed measure was likely to have caused in his life.   In an age when the freedom of movement, especially across borders, was considered essential for the full development of private life, especially for people like the applicant, having family, occupational and economic ties in more than one country, denial of that freedom by the State without any good reason constituted a serious failure on its part to discharge its obligations to those under its jurisdiction.   That being so, the continued application of the prohibition on leaving Turkish territory no longer corresponded to a “pressing social need” and was therefore disproportionate to the aims permitted by Article 8. The Court accordingly concluded unanimously that there had been a violation of Article 8.   By way of just satisfaction, the Court awarded the applicant EUR 25,000 for pecuniary and non-pecuniary damage and EUR 1,350 for costs and expenses. (The judgment is available only in French.)   Mehmet Kaya v. Turkey (no. 36150/02)   Violation of Article 6 § 1 The applicant, Mehmet Kaya, is a Turkish national who was born in 1961 and lives in Istanbul.   In September 1980 the applicant was arrested on suspicion of committing armed assault and attempted murder. He was subsequently detained on remand until April 1991. In December 1992 he was convicted of premeditated murder and sentenced to life imprisonment. That judgment was quashed in May 1993. In 1994, following the abolition of the Martial Law Courts, Ankara Assize Court began the applicant’s trial together with 132 other accused. In November 2003 Ankara Assize Court sentenced him to 37 years’ imprisonment. In May 2004 the Public Prosecutor appealed to the Military Court of Cassation against that judgment. The criminal proceedings are currently pending before the Court of Cassation.   The applicant complained about the length of the criminal proceedings against him. He relied on Article 6 § 1 (right to a fair trial within a reasonable time).   The Court noted that the proceedings lasted 25 years, of which over 18 fell within the Court’s jurisdiction. Having regard to the circumstances of the case, it considered that such a length of time was excessive and failed to satisfy the “reasonable time” requirement. The Court declared the application admissible and held unanimously that there had been a violation of Article 6 § 1. It awarded the applicant EUR 14,000 in respect of non-pecuniary damage and EUR 2,000 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:     Violation of Article 1 of Protocol No. 1 Capone v. Italy (no. 20236/02) Serrilli v. Italy (no. 77822/01) In these two cases the applicants were all owners of plots of land which had been occupied by the administrative authorities with a view to their expropriation and on which construction work had been undertaken. Formal expropriation accompanied by compensation not being forthcoming, the applicants brought proceedings seeking damages for the unlawful occupation of their land.   The applicants alleged that the occupation of their land had infringed their right to the peaceful enjoyment of their possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention (protection of property).   The Court considered that the loss of all power to dispose of the land concerned, together with the impossibility of securing redress, amounted to a de facto expropriation incompatible with the applicants’ right to the peaceful enjoyment of their possessions. It accordingly held unanimously in both cases that there had been a violation of Article 1 of Protocol No. 1. The Court considered that the question of the application of Article 41 (just satisfaction) was not yet ready for decision and therefore reserved it. (The judgments are available only in French.)   Violation of Article 6 § 1 Salvatore v. Italy (no. 42285/98)   Violation of Article 8 The applicant, Manuele Salvatore, is an Italian national who was born in 1963. He is at present a prisoner in Spoleto (Italy), where he is serving a 27-year sentence passed in 1995 for two murders, concealing bodies and illegal possession of a firearm. In 1996 the applicant was sentenced to a further six years’ imprisonment for membership of a criminal organisation and extortion, among other offences.   From 16 December 1997 to 25 October 2001 he was subjected to the special prison regime provided for in section 41 bis of the Prison Organisation Act, which derogates from the conditions laid down in the Prison Administration Act. The applicant lodged a number of appeals against the decisions by the Minister of Justice to prolong application of the special regime.   Since December 1997 the prison authorities have been intercepting the applicant’s correspondence. Most of the letters he has sent to the European Commission and European Court of Human Rights have been opened and read.   The applicant submitted that he had not had an effective remedy against the decisions extending the application of the special regime and complained of the interception of his correspondence by the prison authorities. He relied on Articles 6 (right to a fair trial) and 8 (right to respect for correspondence).   The Court noted that the courts had not ruled on the merits of one of the applicant’s appeals. The absence of any decision on the merits of that appeal had infringed his right to a hearing by a court. The Court therefore held unanimously that there had been a violation of Article 6 § 1.   As regards interception of the applicant’s correspondence, the Court observed that section 18 of the Prison Organisation Act could not be considered a law for the purposes of Article 8 of the Convention. It accordingly held unanimously that there had been a violation of that provision.   It held that the findings of violations provided in themselves sufficient just satisfaction for non-pecuniary damage. (The judgment is available only in French.)     Violation of Article 6 § 1   Violation of Article 1 of Protocol No. 1   Violation of Article 13 Kosarevskaya and Others v. Ukraine (nos. 29459/03, 4935/04 and 26996/04) The applicants, Zoya Vasilyevna Kosarevskaya, Valeriy Ivanovich Bogutskiy and Leonid Vasilyevich Kosarevskiy, are Ukrainian nationals who were born in 1948, 1947 and 1950 and live in Chuguyev (Ukraine).   Relying on Article 6 § 1 (right to a fair trial), the applicants complained of the failure to enforce judgments in which they had been awarded sums of money in respect of arrears of pay. Mr Kosarevskiy further alleged the violation of Article 1 of Protocol No. 1 (protection of property) and Article 13 (right to an effective remedy).   The Court observed that a State authority could not plead a lack of resources to justify the failure to comply with a judicial decision. It noted that the failure to execute the judgments concerned had gone on for many years and that the Government had not put forward any plausible explanation capable of justifying the situation. Consequently, the Court held unanimously that there had been a violation of Article 6 § 1. It further held that there had been violations of Article 1 of Protocol No. 1 and of Article 13 in respect of Mr Kosarevskiy.   The Court held that Ukraine was to pay Mrs Kosarevskaya and Mr Bogutskiy the outstanding money owed under the judgments in their favour. It awarded Mrs Kosarevskaya EUR 558 for non-pecuniary damage and EUR 19 for costs and expenses and Mr Kosarevskiy EUR 828 for non-pecuniary damage and EUR 11 for costs and expenses. (The judgment is 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.