CEDH · PRESS;GENERAL;ENG — 13 décembre 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6ADCCCA1 { width:46.1pt; display:inline-block } .sFE40E937 { width:138.81pt; display:inline-block } .sC19E7CBA { width:165.48pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FCA40C5 { width:148.16pt; display:inline-block } .sD472578 { width:317.57pt; display:inline-block } .sFDD07C1D { width:114.13pt; display:inline-block } .sC70B85C6 { width:24.78pt; display:inline-block } .sE6C95400 { width:163.49pt; display:inline-block } .s26D56545 { width:100.8pt; display:inline-block } .sD479557A { width:330.91pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sCEA5E46A { width:100.14pt; display:inline-block } .s816CE719 { width:7.47pt; display:inline-block } .sCDC84782 { width:50.15pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   708 20.12.2005   Press release issued by the Registrar   Chamber judgments concerning France, Hungary, Poland, Portugal, Turkey and   Ukraine   The European Court of Human Rights has today notified in writing the following 18 Chamber judgments, none of which is final. [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.     Guillemot v. France (application no 21922/03)   No violation of Article 6 § 1 The applicant, Magali Guillemot, is a French national who was born in 1967 and lives in Versailles (France).   On 5 December 1994 the son of the applicant and J.D., died at the age of two months. According to the expert reports, the child had sustained fractured limbs during the last three weeks of his life, a fracture of the skull approximately two weeks before his death, and bruising to the brain. The applicant and J.D. were placed under investigation on charges of assault resulting in the unintentional death of a child under 15 by its legitimate parents. In a judgment of 23 November 2000 Hauts ‑ de ‑ Seine Assize Court acquitted J.D., but sentenced the applicant to 15 years’ imprisonment. The applicant appealed.   In the appeal proceedings before the Paris Assize Court, J.D. gave evidence as a witness on several occasions and was questioned by the applicant’s lawyers. In a judgment of 17   November 2001 Assize Court of Appeal found the applicant guilty and sentenced her to ten years’ imprisonment. The Court of Cassation dismissed an appeal by the applicant on 15   January 2003.   Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, the applicant complained that the proceedings before the Assize Court of Appeal had been unfair. She complained that, owing to the legal impossibility for any party to appeal against an acquittal, she had appeared as the sole defendant, despite having had a co ‑ defendant in the proceedings at first instance. She further complained that she had thus had to defend herself against her former co ‑ defendant, who had become a witness against her in the appeal proceedings.   The European Court of Human Rights reiterated that the Convention did not guarantee the right to have third parties prosecuted or sentenced for a criminal offence. The right claimed by the applicant for the prosecution or co-defendants to appeal against an acquittal was not secured in the Convention.   Furthermore, it appeared that Assize Court of Appeal had given its decision following adversarial proceedings during which the evidence produced by each party had been debated in court. The applicant had had the opportunity to challenge the evidence produced by the prosecution and to put forward any observations and arguments she considered necessary.   The Court therefore considered that the fact that the applicant had been the sole defendant in the proceedings before Assize Court of Appeal had not infringed her right to a fair trial. Accordingly, it held, unanimously, that there had been no violation of Article 6 § 1. (The judgment is available only in French.)     P.D. v. France (no. 54730/00)   No violation of Article 6 § 1 The applicant, P.D., is a French national who was born in 1927 and lives in Châtenay ‑ Malabry (France). He is a retired judge.   Criminal proceedings were brought against the applicant for attempted sexual assault of a child under 15 by means of violence, coercion, threats or taking the victim by surprise. On 11 February 1998 he was found guilty as charged and sentenced to a fine of approximately 1,525 euros (EUR). He appealed on points of law against the judgment upholding his conviction. On 4 November 1999 the Court of Cassation dismissed the applicant’s appeal on the ground that his written pleadings to the court had been filed beyond the statutory time-limit.   The applicant contended that his inability to attend the hearing of the Court of Cassation, because he had not been informed of the date, and to “present his defence” in the form of a memorandum for the deliberations, had infringed Article 6 § 1 (right to a fair trial).   The Court noted that the Court of Cassation had not ruled on the merits of the case, as the applicant’s pleadings had been inadmissible under Article 585-1 of the Code of Criminal Procedure owing to his failure to request an extension of the time allowed for submitting them. In the circumstances, informing the applicant of the date of the hearing, so that he could attend and submit a memorandum for the deliberations in response to the oral submissions of the Advocate-General, would have made no difference to the outcome of the proceedings before the Court of Cassation. The Court therefore held, unanimously, that there had been no violation of Article 6 § 1. (The judgment is available only in French.)   Wisse v. France (no. 71611/01)   Violation of Article 8 The applicants, Jean ‑ François Wisse and his brother Christian Wisse, are French nationals who were born in 1959 and 1952 respectively. They are currently detained in France in Ploemeur Detention Centre and Brest Prison, where they are serving sentences of 25 years and 20 years respectively following their conviction in 1992 for armed robbery and attempted murder.   The applicants were arrested on 9 October 1998 on suspicion of committing armed robberies at the branches of the Crédit Agricole bank in Tinténiac and Combourg, and were placed in pre ‑ trial detention. Under a warrant issued by the investigating judge, the telephone conversations between the applicants and their relatives in the prison visiting rooms were recorded between November 1998 and February 1999.   The applicants made an unsuccessful application to have the steps in the proceedings relating to the recording of their conversations declared invalid. The Court of Cassation dismissed an appeal lodged by them on that point on 12 December 2000.   Relying on Article 8 (right to respect for private and family life), the applicants argued that the recording of their conversations in the prison visiting rooms constituted interference with their right to respect for their private and family life.   In the Court’s view, the systematic recording of conversations in a visiting room for purposes other than prison security deprived visiting rooms of their sole raison d’être , namely to allow detainees to maintain some degree of “private life”, including the privacy of conversations with their families. The conversations conducted in a prison visiting room, therefore, could be regarded as falling within the scope of the concepts of “private life” and “correspondence”.   The recording and subsequent use of the conversations between the applicants and their relatives in the visiting rooms amounted to an interference with their private lives which was not in accordance with the law within the meaning of Article 8 § 2. French law did not indicate with sufficient clarity how and to what extent the authorities could interfere with detainees’ private lives, or the scope and manner of exercise of their powers of discretion in that sphere.   Accordingly, the Court held, by six votes to one, that there had been a violation of Article 8. It considered that the finding of a violation of the Convention constituted in itself sufficient just satisfaction for the alleged non ‑ pecuniary damage. (The judgment is available only in French.)     Nagy v. Hungary (no. 6437/02)   Violation of Article 6 § 1 The applicant, Józsefné Nagy, is a Hungarian national who was born in 1957 and lives in Kerecsend (Hungary).   On 1 March 2001 criminal investigations were brought against 30 suspects, including the applicant (a business woman) on suspicion of tax fraud. On 12 June 2003 she was charged with 30 counts of tax fraud and 12 counts of forgery. The proceedings are still pending.   The applicant complained about the length of the proceedings and about the inappropriate behaviour displayed by the tax investigators who were carrying out a search of her property. She relied on Article 6 § 1 (right to a fair trial within a reasonable time), Articles 3 (prohibition on inhuman or degrading treatment) and 8 (right to respect for private and family life).   The Court declared the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible.   The Court noted that the proceedings in question had lasted over four years and eight months. 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. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 4,000 in respect of non-pecuniary damage. (The judgment is available only in English.)     Violation of Article 5 § 3 Jasiński v. Poland (no. 30865/96)   No violation of Article 6 § 1 The applicant, Marek Jasiński, is a Polish national who was born in 1958 and lives in Zabrze (Poland).   On 8 January 1994 the applicant was arrested by the police on suspicion of having committed burglary. On 10 January 1994 he was brought before a district prosecutor from the Pszczyna District Prosecutor’s Office, charged with six counts of burglary and detained on remand. Both before and after he was formally charged, his detention was prolonged, and his applications for release dismissed by Z.R., another District Prosecutor. On 15 March a panel of judges, with Z.R. acting as the presiding judge, opened a trial in the applicant’s case. The applicant was convicted of 23 counts of burglary and sentenced to four years’ imprisonment and fined. The applicant appealed without success.   He complained that after having been arrested he had not been brought promptly before a “judge” but before the investigating prosecutor. He also submitted that he had not had his case heard by an “impartial tribunal” because the judge presiding over his trial had on many occasions dealt with his applications for release and had formed a preconceived view on his future conviction and sentence. He relied on Article 5 § 3 (right to be brought promptly before a judge) and Article 6 § 1 (right to a fair trial within a reasonable time).   As it had found previously in cases of a similar nature concerning Poland, the Court held that a prosecutor did not offer the necessary guarantees of independence and impartiality because the prosecution authorities not only belonged to the executive branch of the State but also concurrently performed investigative and prosecution functions in criminal proceedings and were a party to such proceedings. Furthermore, it considered that the fact that the prosecutors in addition acted as guardian of the public interest could not by itself confer on them the status of “officer[s] authorised by law to exercise judicial power”. It accordingly held, unanimously, that there had been a violation of Article 5 § 3.   The Court found that the applicant’s misgivings about the impartiality of the judge presiding over his trial could not be regarded as objectively justified and therefore found, unanimously that there had been no violation of Article 6 § 1.   The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. (The judgment is available only in English.)   Magalhães Pereira v. Portugal (No. 2) (no. 15996/02)   Violation of Article 5 § 4 The applicant, Joaquim Magalhães Pereira, is a Portuguese national who was born in 1940 and lives in Maia (Portugal).   The applicant was arrested in March 1996 on suspicion of fraud and was placed in pre ‑ trial detention. During the proceedings, he was the subject of a psychiatric assessment which found him to be suffering from residual schizophrenia and recommended long ‑ term psychiatric treatment. On 11 November 1996 Oporto Criminal Court found that the applicant, on account of his mental illness, was not criminally responsible and was dangerous, and ordered his confinement.   The public prosecutor’s office lodged an application to have the applicant released, which was dismissed on 20 June 2001. On 24 October 2001 the judge ordered a psychiatric examination of the applicant, but the doctor in charge of the clinic where the applicant was confined said he would be unable to conduct such an examination owing to “staff shortages”. The Institute of Forensic Medicine, to which the judge then wrote, said that it was unable to perform the examination as its annual “ceiling” had been exceeded. The examination was carried out on 11 April 2002 in Magalhães Lemos Psychiatric Hospital in Oporto, and the resulting report concluded that the applicant should be released on licence. The applicant was released on 24 May 2002.   Relying on Article 5 § 4 (right to liberty and security), the applicant contended that the decision on the lawfulness of his confinement had not been made “speedily”.   The Court noted that the period in question had started on 20 June 2001, the date on which the appeal against the first periodic review of the applicant’s confinement had been dismissed, and ended on 24 May 2002, when the second periodic review had been carried out. Under Portuguese law, the second review should have taken place no later than 20 January 2002. The delay had been caused purely by administrative problems. The Court was particularly struck by the fact that administrative considerations of this kind had been the source of lengthy delays in reviewing the lawfulness of the detention of a person confined to a psychiatric institution.   Having regard to the circumstances of the case, the Court considered that the Portuguese authorities had failed to proceed with the necessary diligence. It 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 2,500 for costs and expenses. (The judgment is available only in French.)   Çetin v. Turkey (no. 42779/98)   Violation of Article 10 The applicant, Vedat Çetin, is a Turkish national who was born in 1961 and lives in Diyarbakır. He is editor of the newsletter of the Human Rights Association.   In the August-October 1996 edition, the newsletter published three articles conveying the aspirations of the population of south ‑ eastern Turkey for peace and criticising the manner in which the armed forces were conducting their anti-separatist activities.   Following publication of the articles, the applicant was charged with incitement to hatred and hostility on the basis of a distinction between races and between regions. In October 1997 Diyarbakır State Security Court decided to stay the proceedings against the applicant under Law no. 4304, by which proceedings against editors may be stayed and resumed in the event of a further offence within three years. On 10 September 2001 the proceedings against the applicant were discontinued.   Relying on Article 10 (freedom of expression), the applicant contended that the proceedings against him had infringed his right to freedom of expression. He argued that, although the proceedings had been stayed, the possibility that they might be resumed in the event of a further offence had prevented him from expressing his views over a three ‑ year period.   The Court considered that the conditional decision to stay the proceedings had been liable to discourage the applicant from contributing to public debate on issues of interest to society and had constituted an interference with his right to freedom of expression. It noted that, while some particularly virulent passages in the articles painted an extremely negative picture of the Turkish State, thereby lending a hostile tone to the articles, that did not mean that they encouraged the use of violence or armed resistance or insurrection or amounted to hate speech. In the Court’s view, that was an essential factor to take into consideration. It found that the impugned measure had been disproportionate to the aims pursued and therefore not “necessary in a democratic society”. Accordingly, the Court held, unanimously, that there had been a violation of Article 10. It awarded the applicant EUR 1,000 in respect of non ‑ pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.)   Dindar v. Turkey (no. 32456/96)   Violation of Article 6 §§ 1 and 3 The applicant, Muharrem Dindar, is a Turkish national who was born in 1941 and lives in İzmir (Turkey).   In 1992 criminal proceedings were brought against the applicant for falsification of private papers. He was found guilty as charged and sentenced to a fine. In a judgment of 28 September 1996 the Court of Cassation upheld the judgment.   Relying on Article 6 §§ 1 and 3 (b) (right to a fair trial), the applicant complained that the proceedings before the Court of Cassation had been unfair, as the observations of the public prosecutor had not been communicated to him and there had been no hearing before the Court of Cassation.   The Court found that the failure to communicate the public prosecutor’s observations to the applicant, taken together with the lack of a public hearing before the Court of Cassation, amounted to a violation of Article 6 §§ 1 and 3 (b). It awarded the applicant EUR 1,000 for non ‑ pecuniary damage and EUR 1,000 for costs and expenses, less the EUR 790 in legal aid already paid by the Council of Europe. (The judgment is available only in French.)     Violation of Article 6 § 1   Violation of Article 10 Korkmaz v. Turkey (No. 1) (no. 40987/98) Korkmaz v. Turkey (No. 2) (no. 42589/98) Korkmaz v. Turkey (No. 3) (no. 42590/98) The applicant, Verdat Kokmaz, is a Turkish national who was born in 1965 and lives in Istanbul. He is the owner of the daily newspaper Evrensel .   On 16 October 1995, 12 June 1996 and 17 August 1996 the newspaper published three articles entitled “DHKC denies allegations”, “The bloody rise to power of Mr Ağar” and “PKK suspends ceasefire”. The first article consisted of a denial by the organisation DKHC of reports that it had been involved in a break-in. The second contained a virulent criticism of the Minister of Justice in the form of a scathing commentary on his professional career, while the third consisted of a report of a telephone interview conducted by a television station with the head of the PKK, Abdullah Öcalan.   The applicant was prosecuted on the basis of the Prevention of Terrorism Act (Law no. 3713) and sentenced by Istanbul State Security Court in April 1996 and February and May 1997 to three substantial fines. All three judgments were upheld by the Court of Cassation.   Relying on Article 10 (freedom of expression), the applicant alleged that his criminal convictions had infringed his right to freedom of expression. He further complained under Article 6 (right to a fair trial) that the proceedings leading to his convictions had been unfair, in particular owing to the presence of a military judge on the bench of the State security courts.   The Court considered that the grounds advanced by the domestic courts could not be regarded in themselves as sufficient to justify the interference with the applicant’s right to freedom of expression. It noted that the articles in issue did not encourage the use of violence or armed resistance or insurrection, nor did they amount to hate speech. In the Court’s view, that was an essential factor to take into consideration. It found that the applicant’s convictions had been disproportionate to the aims pursued and therefore not “necessary in a democratic society”. It therefore held, unanimously in all three cases, that there had been a violation of Article 10.   In addition, the Court found, unanimously in each case, 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 Court. With regard to the other complaints of procedural unfairness, 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. Accordingly, it was unnecessary to examine those complaints.   The Court awarded the applicant a total of EUR 8,000 in respect of pecuniary and non ‑ pecuniary damage and EUR 4,500 for costs and expenses. (The judgments are 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 of Article 6 § 1 Marion v. France (no. 30408/02) Relais du Min Sarl v. France (no. 77655/01)   The applicant, Claude Marion, is a French national who was born in 1943 and lives in Saint ‑ Plancard (France). In 1993 he brought proceedings seeking in particular the payment of damages following his dismissal. On 15 January 2002 the Employment Division of the Court of Cassation dismissed his appeal.   The applicant, Relais du Min Sarl, is a limited liability company with its registered offices in Lille (France). Its assets were liquidated by the Lille Commercial Court on 1 April 1997. It appealed on points of law against the judgment upholding that decision. On 29 May 2001 the Commercial Division of the Court of Cassation declared the appeal inadmissible.   In both cases, the applicants complained in particular that they had not had a fair hearing before the Court of Cassation, as they had not received the reporting judge’s report before the hearing, whereas the Advocate ‑ General had, and that they had been unable to respond to it. They relied on Article 6 § 1 (right to a fair hearing).   The Court reiterated that, given the importance of the reporting judge’s report, the Advocate-General’s role and the implications of the outcome of the proceedings for the applicants, the imbalance created by the failure to give like disclosure of the report to the defence counsel was not consistent with the requirements of a fair hearing. It therefore held, unanimously in both cases, that there had been a violation of Article 6 § 1. In Relais du Min Sarl v. France , the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage, and awarded the applicant company EUR 2,500 for costs and expenses. In the Marion case, the Court dismissed the claim for just satisfaction. (The judgments are available only in French.)   Mahsun Tekin v. Turkey (no. 52899/99)   Violation of Article 6 § 1 The applicant, Mahsun Tekin, is a Turkish national who was born in 1976. At the time the application was lodged, he was detained in Aydın Prison in Turkey. On 10 June 1998 Ankara State Security Court sentenced him to 15 years’ imprisonment on account of his membership of the student branch of an illegal armed organisation. He appealed unsuccessfully on points of law.   Relying on Article 3 (prohibition of torture and inhuman or degrading treatment), the applicant complained that had been ill-treated while in police custody. He also complained under Article 6 (right to a fair trial) that the proceedings leading to his conviction had been unfair, owing to the presence of a military judge on the bench of the State security court.   The Court declared the complaint under Article 3 inadmissible, and the complaint under Article 6 admissible. It held that there had been a violation of Article 6 § 1 on account of the lack of independence and impartiality of the State security court. The applicant did not submit any claim for just satisfaction. (The judgment is available only in French.)     Özer and Others v. Turkey (no. 42708/98)   Violation of Article 1 of Protocol No. 1 The applicants are 11 Turkish nationals whose plot of land in Ankara was expropriated by the General Directorate of National Roads and Highways. On 14 September 1994 Ankara Civil Court of First Instance awarded them compensation. They received partial payment on 17 February 1998.   The applicants complained that they had been paid insufficient interest on additional compensation received following the expropriation of their land and that the authorities had delayed in paying them the relevant amounts. They relied on Article 1 of Protocol No. 1 (protection of property).   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1   and awarded the applicants, jointly, EUR 80,000 in respect of pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in English.)     Bezugly v. Ukraine (no. 19603/03)   Violation of Article 1 of Protocol No. 1 Oleynik and Baybarza v. Ukraine (no. 5384/03)          Violation of Article 6 § 1                                                                                       Violation of Article 1 of Protocol No. 1 Vigovskyy v. Ukraine (no. 42318/02                             Violation of Article 6 § 1   The applicants all complained about the lengthy failure of the State authorities to execute judgments given in their favour.   In the case of Oleynik and Baybarza and Vigovskyy the applicants relied on Article   6 §   1 (access to court). In the case of Oleynik and Baybarza the applicants also relied on Article   1 of Protocol No.   1 (protection of property) together with the applicant in Bezugly .   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 years, a situation for which the Government had not provided any plausible justification.   The Court held unanimously that there had been a violation of each article cited. In the case of Oleynik and Baybarza and Vigovskyy the Court held that Ukraine was to pay the applicants the judgment debts still owed to them. It awarded EUR 1,760 to Mr Bezugly , and EUR 2,440, each, to Mr Oleynik and Mr Baybarza in respect of pecuniary and non-pecuniary damage, and EUR 2,120 to Mr Vigovskyy for non-pecuniary damage. (The judgments in Bezugly and Vigovskyy are available only in French, and the judgment in Oleynik and Baybarza is available only in English.)     ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)   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.