CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 22 décembre 2005

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[1]   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.     Iera Moni Profitou Iliou Thiras v. Greece (application no. 32259/02) Violation of Article 6 § 1 The applicant, “Iera Moni Profitou Iliou Thiras”, is a monastery on the island of Thira (Greece).   In November 1999 and February 2000 the Minister for Transport and Telecommunications informed the Greek Telecommunications Organisation (“OTE”) and the Hellenic Broadcasting Corporation (“ERT”) respectively, which in 1971 had put up huge aerials near the monastery, that the frequencies allotted to them would cease to be valid unless they took the necessary steps to relocate their aerials.   The OTE and ERT brought proceedings in the Supreme Administrative Court to have that decision set aside and the monastery intervened as a third party in the proceedings. In judgments of 2 October 2001 and 4 April 2003, the Supreme Administrative Court found that the ministerial decisions ordering the OTE and ERT to remove their aerials had been lawful. It moreover considered that the decision by the National Commission for Telecommunications and Postal Services, whereby the OTE was given 14 months to remove its aerials, had contained sufficient reasons.   To date, the aerials have still not been relocated.   The applicant complained under Article 6 § 1 (right to a fair hearing) that the authorities had refused to comply with judicial decisions given in its favour.   The European Court of Human Rights considered that Article 6 § 1 of the Convention made no distinction between judgments which allowed and those which rejected remedies used in domestic courts. Regardless of the outcome, they were still judicial decisions that needed to be complied with and applied. In the present case, the Court considered that the decisions of the Supreme Administrative Court had clearly placed an obligation on the Greek authorities, together with the OTE and the ERT, to ensure the removal of the aerials, but this had not been done to date. Considering the importance of the matter for the preservation of the natural and cultural environment and in view of the time that had elapsed, the Court found that the failure of the authorities to enforce irrevocable and final decisions had deprived Article 6 § 1 of all useful effect.   Accordingly, the Court held, by six votes to one, that there had been a violation of Article 6 § 1. It ruled that, within three months from the date on which the judgment became final, Greece should secure, by appropriate means, the execution of the decisions in question. Greece was also ordered to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)   Velcea v. Romania (no. 60957/00)   Friendly settlement The applicant, Viorel Velcea, is a Romanian national who was born in 1975 and lives in Lipov (Romania).   On returning from a discotheque on 23 October 1999 he was involved in a road traffic accident not far from Lipov police station. He contended that he was then subjected to verbal and physical abuse by non-commissioned officer G.C. at the scene of the accident and at the police station where he was taken into custody. The officer allegedly struck him several times, with the assistance of the passenger in the car. The Romanian Government, for their part, contended that the applicant, who was obviously inebriated, had attacked the police officer and had fought with the passenger in the officer’s car.   A medical examination on 25 October 1999 revealed that the applicant’s body had sustained a number of injuries from hard blows, most probably frontal, and that he required seven or eight days of medical treatment. His nose had also been fractured. The applicant lodged a criminal complaint against officer G.C. but the proceedings were discontinued. On 29 September 2000 the applicant was sentenced to one year and six months in prison for abusive behaviour towards a police officer.   Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant complained about the treatment he had received while in police custody. In addition, relying on Article 5 (right to liberty and security), he maintained that he had been unlawfully deprived of his liberty.   The case has been struck out of the list following a friendly settlement under which the applicant is to receive EUR 6,000 in respect of pecuniary and non-pecuniary damage and for costs and expenses. (The judgment is available only in French.)   A.D. v. Turkey (no. 29986/96)   Violation of Article 5 § 1 (a) The applicant, A.D., is a Turkish national who was born in 1967 and lives in Edirne (Turkey). At the time the application was lodged he was serving as a sergeant in the armed forces.   On 14 October 1994 a lieutenant-colonel ordered the applicant to be placed under open arrest for 21 days for disobeying military orders. He served his sentence at the prison for commissioned and non-commissioned officers. He unsuccessfully lodged a number of appeals against the decision. In 1995 he was sentenced to similar sanctions for breaches of military discipline.   The applicant complained that the sentence had been imposed by his military superior and not by a competent court within the meaning of Article 5 § 1 (a) (right to liberty and security).   The Court reiterated that the deprivation of a person’s liberty should only be ordered by a court which was competent to hear the case, which was independent from the executive and which offered adequate judicial guarantees. In the present case the applicant had been detained on the orders of his military superior, who exercised his authority within the military hierarchy, reported to other higher authorities and was thus not independent of them. In addition, disciplinary proceedings before a military superior did not provide the judicial guarantees required by Article 5 § 1 (a). The Court thus held, unanimously, that there had been a violation of Article 5 § 1 (a) and awarded the applicant EUR 2,000 in respect of non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.)   Ahmet Turan Demir v. Turkey (no. 72071/01)   Friendly settlement The applicant, Ahmet Turan Demir, is a Turkish national, who was born in 1949 and lives in Ankara. At the relevant time, he was the leader of the People’s Democratic Party (HADEP).   Criminal proceedings were brought against him in relation to a speech he made at a party meeting in Ankara in October 1999, following which, on 1 June 2000, Ankara State Security Court found him guilty of disseminating propaganda against the indivisible unity of the State, contrary to the Prevention of Terrorism Act (Law no.   3713). He was fined 800,000,000   Turkish liras and sentenced to a one-year term of imprisonment. He appealed unsuccessfully.   The applicant complained about his conviction, relying on Article 10 (freedom of expression).   The case has been struck out following a friendly settlement in which EUR 5,500 is to be paid to the applicant for any non-pecuniary and pecuniary damage, costs and expenses. (The judgment is available only in English.)   Çamlıbel v. Turkey (no. 64609/01)   Violation of Article 10 The applicant, Yılmaz Çamlıbel, is a Turkish national who was born in 1938 and lives in Ankara.   On 14 December 1992 Mr Çamlıbel, in his capacity as secretary of the Kurdish Rights and Freedom Foundation, took part in a symposium organised by the Kütahya Human Rights Association. He gave a talk in which he criticised the Government’s policy concerning the problem of Kurds living in Turkey.   Criminal proceedings were brought against the applicant and, on 20 September 1999, he was sentenced by the State security court to one year’s imprisonment, among other penalties, for disseminating separatist propaganda. The Court of Cassation upheld his conviction. The applicant complained that his conviction had breached his right to freedom of expression, relying on Article 10 (freedom of expression). He also alleged that there had been a violation of Article 14 (prohibition of discrimination).   The Court considered that the reasons 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 certain passages in the talk painted a negative picture of the Turkish State's policy and gave the words a hostile tone, they did not incite violence, armed resistance or an uprising and did not amount to hate speech, which, in the Court’s opinion, was the essential element to be taken into consideration. It found that the applicant’s conviction had been disproportionate to the aims pursued and accordingly not “necessary in a democratic society”.   The Court therefore held, unanimously, that there had been a violation of Article 10 and considered it unnecessary to examine separately the complaint under Article 14. By way of just satisfaction, it awarded the applicant EUR 1,000 in respect of non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1   No violation of Article 6 § 3 (a) Ayçoban and Others v. Turkey (nos. 42208/02, 43491/02, and 43495/02) The applicants, Ferman Ayçoban, Aziz Yiğit, and Şirin Meygil, are Turkish nationals who were born in 1973, 1975, and 1980 respectively. They were detained in Elazığ Prison (Turkey).   On 4 June 1999 the applicants were arrested by police officers from the anti-terrorist branch of Diyarbakır Security Directorate on suspicion of being members of Hezbollah. On the same day, the police officers drafted arrest protocols stating that the applicants had been arrested in the course of an operation conducted against the members of the illegal organisation.   The applicants were tried by Diyarbakır State Security Court, before which they denied the content of their police statements alleging that they were taken under duress.   On 27 December 2001 the court convicted the applicants of being members of Hezbollah, under Article 168 § 2 of the Criminal Code and sentenced them to 12 years and six months’ imprisonment. They appealed unsuccessfully.   The applicants alleged that they were denied a fair hearing in that they were not informed in detail of the nature and the cause of the accusations against them. They further complained that the written observations of the Principal Public Prosecutor to the Court of Cassation were not communicated to them, thus depriving them of the opportunity to put forward their counter-arguments. They relied on Article 6 §§ 1 (right to a fair trial within a reasonable time) and 3   (a) (right of accused to be informed promptly of the accusation against her/him).   The Court first noted that the arrest protocols which were drafted after the applicants’ arrest contained information about the charges against them and were also signed by them. The Court further noted that the bill of indictment lodged against the applicants was sufficiently concrete and detailed to enable them to determine the offences with which they were charged. They were able to challenge those conclusions before the domestic court, with legal assistance. In those circumstances, the Court considered that there could be no doubt that the applicants were fully informed about the charges against them.   The Court, therefore, held, unanimously, that there had been no violation of Article 6 § 3 (a).   As it had already found in similar cases, the Court further noted that, having regard to the nature of the principal public prosecutor’s submissions and to the fact that the applicant was not given an opportunity to make written observations in reply, there had been an infringement of the applicant’s right to adversarial proceedings. The Court therefore held unanimously that there had been a violation of Article 6 § 1.   The Court also held that the finding of these violations constituted sufficient compensation for any non-pecuniary damage incurred by the applicants. (The judgment is available only in English.)   Aydoğan v. Turkey (no. 40530/98)   Violation of Article 6 § 1 The applicant, Cemil Aydoğan, is a Turkish national who was born in 1954 and lives in Mardin (Turkey). He was arrested on 4 November 1993 on suspicion of having links with an armed organisation. The criminal proceedings brought against him were discontinued on 7 June 2002.   Relying on Article 6 § 1 (right to a fair trial), the applicant complained about the length of the criminal proceedings brought against him.   The Court noted that the impugned proceedings had lasted for about eight years and seven months. In the circumstances of the case, it considered that such a period was excessive and did not meet the “reasonable time” requirement. The Court accordingly held, unanimously, that there had been a violation of Article 6 § 1 and awarded the applicant EUR 6,000 for non-pecuniary damage. (The judgment is available only in French.)   Balyemez v. Turkey (no. 32495/03)   No violations of Article 3 The applicant, Bekir Balyemez, is a Turkish national who was born in 1970 and lives in Izmit (Turkey).   In July 1995 the applicant was convicted of a number of offences, including armed robbery, throwing explosive devices and arson, and was sentenced to 12 years and six months in prison. On 23 February 2001 he was transferred to Tekirdağ Category F Prison, where he was allegedly struck by guards and sustained a fractured nose caused by blows from a truncheon. He lodged a complaint against the prison security forces but the proceedings were discontinued in September 2001.   In January 2002 the applicant was diagnosed as having Wernicke-Korsakoff syndrome, brought on by a hunger strike, and a stay of execution of his sentence was consequently ordered. In October 2003 a medical report concluded that, in view of the applicant’s state of health, the stay of execution of his sentence was no longer justified and a warrant was accordingly issued for his arrest. As requested by the European Court, the public prosecutor decided to withdraw the arrest warrant.   A committee of experts from the Court examined the applicant on 11 September 2004 and concluded that he was not suffering from any neurological or neuropsychological disorders that made him unfit to live in prison conditions, but recommended that he receive psychological therapy.   The applicant alleged in particular that he had been subjected to ill ‑ treatment when he was transferred to Tekirdağ Prison. He also argued that his return to prison would constitute inhuman and degrading treatment and punishment because he would still be suffering from Wernicke-Korsakoff syndrome. He further complained that the proceedings relating to his complaint of ill-treatment had been unfair and that there had been no effective investigation into his allegations. He relied on Articles 3 (prohibition of inhuman or degrading treatment), 6 (right to a fair hearing) and 13 (right to an effective remedy).   Regarding his allegations of ill-treatment at the time of his prison transfer, the Court observed that nothing in the case file allowed it to establish beyond all reasonable doubt that the prison guards had actually subjected the applicant to the abuse he complained of, or to call into question the manner in which the authorities had investigated the matter. The Court therefore held, unanimously, that there had been no violation of Article 3 on that account.   As to the applicant’s possible return to prison, the Court, after a comprehensive assessment of the pertinent facts, based on the evidence in the case file, together with the opinion of its own experts, did not consider it established that the applicant’s conditions of detention, in the event of his return to prison, would in themselves constitute inhuman or degrading treatment within the meaning of Article 3. Accordingly, the Court held, unanimously, that there would not be a violation of Article 3 if the applicant returned to prison. However, in view of the experts’ recommendation of psychological therapy, the Court would be open to any measures that the Turkish authorities might take to help the applicant, either to ease the psychological effects of his possible future detention or to release him again as soon as circumstances so required, bearing in mind that the applicant could always come back to the Court if necessary.   As to the applicant’s other complaints under Articles 6 and 13, the Court decided to examine them under Article 13 alone. Having regard to the conclusion it had reached concerning Article 3, it considered that it did not need to examine the application under Article 13. (The judgment is available only in French.)   Çiçekler v. Turkey (no. 14899/03)   Violation of Article 5 §§ 3 and 5 Ergül Çiçekler was born in 1976. He is currently detained in Kocaeli Prison (Turkey).   In May 1996 the applicant was arrested on suspicion of belonging to an illegal armed organisation, the TKEP-L, and was detained pending trial. Istanbul State Security Court dismissed seven different applications for release and extended his detention on the basis of the evidence and the risk that he might abscond.   The applicant was convicted of terrorist acts perpetrated in the name of the organisation in question, such as arson and bomb attacks, and was sentenced to life imprisonment. His conviction was upheld by the Court of Cassation on 6 May 2003. Having developed Wernicke-Korsakoff syndrome as a result of a long period on hunger strike during his detention, the applicant was receiving treatment at Bakırköy Psychiatric Hospital.   The applicant alleged that his imprisonment would constitute a violation of Article 3 (prohibition of inhuman and degrading treatment or punishment). Relying on Article 5 (right to liberty and security), he complained of the length of his detention pending trial and of the lack of a right to compensation in that regard. The Court found the application admissible as regards the complaint under Article 5 and inadmissible concerning the other complaints, having regard in particular to the opinion of its experts, who, after examining the applicant in September 2004, had considered that he was fit to serve a prison sentence. It noted, having regard to its decision on admissibility, that the applicant had been held in pre-trial detention for about two years and one month. The State Security Court had, after each hearing, lawfully ruled that the applicant should remain in detention on grounds that were almost always identical, namely the nature of the charge, the state of the evidence, the content of the case file and the length of the detention.   In the circumstances of the case, the Court considered that the length of the applicant’s detention had been unreasonable and accordingly held, unanimously, that there had been a violation of Article 5 § 3.   Moreover, the Court observed that Turkish law did not afford, to a sufficient degree of certainty, a right to compensation for detainees held in conditions that breached the Convention. The Court accordingly held, again unanimously, that there had been a violation of Article 5 § 5.   By way of just satisfaction, the Court awarded the applicant EUR 2,000 for non-pecuniary damage. (The judgment is available only in French.)     Violation of Article 5 § 3 Bulduş v. Turkey (no. 64741/01) H.E. v. Turkey (no. 30498/96) İ.B. v. Turkey (no.30497/96) Mehmet Hanefi Işık v. Turkey (no. 35064/97) Pütün v. Turkey (no. 31734/96) In all five cases, the applicants are Turkish nationals who were arrested on suspicion of having links with illegal organisations. Mahmut Bulduş was born in 1964 and is currently detained in Midyat Prison; H.E. and İ.B. were born in 1969 and 1970 respectively and live in İzmir; Mehmet Hanefi Işık was born in 1950 and lives in Diyarbakır; Ali Şahin Pütün was born in 1977 and lives in Germany, but at the time of the events he ran a fast-food restaurant in Istanbul.   In March 2000 and August 1996 Mahmut Bulduş and Mehmet Hanefi Işık were arrested on suspicion of belonging to the PKK; H.E. and İ.B. were arrested by the police in April 1995 in connection with an investigation into the illegal organisation Ekim ; Ali Şahin Pütün was arrested in November 1995 during a clandestine meeting being held by members of the terrorist organisation Devrimci Halk Kurtuluş Partisi Cephesi (“DHKP-C”).   In all five cases, the applicants complained in particular that the length of time for which they had been held in police custody breached Article 5 § 3 (right to liberty and security).   The Court noted that Mr Bulduş had spent ten days in custody, H.E. 14 days, İ.B. 13 days, Mehmet Hanefi Işık 20 days and Mr Pütün ten days. It could not accept that it had been necessary to detain the applicants for such long periods before they were brought before a judge. Accordingly, the Court held, unanimously in all five cases, that there had been a violation of Article 5 § 3.   In respect of non-pecuniary damage, the Court awarded EUR 3,500 to Mr Bulduş, EUR 5,000 to H.E., EUR 4,500 to İ.B. and EUR 3,500 to Mr Pütün. In addition, it awarded EUR 1,000 to Mr Bulduş, EUR 1,500 each to H.E. and İ.B., and EUR 574.96 to Mr Pütün for costs and expenses. (The Bulduş judgment is available only in English and the other four judgments only in French.)     Violation of Article 6 § 1 Tendik and Others v. Turkey (no. 23188/02)   Violation of Article 13 The applicants, Halit Tendik, Haydar Tikiz, Aran Serhat and Salih Tikiz, are Turkish nationals who were born in 1972, 1969, 1977 and 1947, respectively. They are imprisoned in Erzurum Prison (Turkey).   The applicants were detained on 7 January 1995, 16 March 1994, 11 July 1994, and 3 February 1994, respectively, for being members of the PKK and carrying out separatist activities.   They were brought before the investigating judges on 11   February, 24 March, 20 July 1994 and 20 January 1995, who subsequently ordered the applicants’ detention on remand. They were accused, among other things, of involvement in separatist activities and being members of, and aiding and abetting, the PKK. The accusation against Halit Tendik included forming   the Evci village committee of the PKK, setting three primary schools in different villages on fire, and recruiting people for the mountain team of the organisation.   The applicants were held in detention throughout the criminal proceedings against them.   Ultimately, on 22 May 2001, Halit Tendik, Haydar Tikiz were sentenced to life imprisonment, Aran Serhat to 16 years and eight months’ imprisonment and Salih Tikiz to 12 years and six months’ imprisonment.   The applicants complained about the length of their detention on remand and the criminal proceedings against them, relying 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).   The Court declared the applicants’ complaint under Article 5 § 3 inadmissible, as it had been   introduced out of time.   Concerning Article 6 § 1, the Court considered that the total length of the proceedings (in particular a period of six years and four months before the first-instance court) could not be considered to have complied with the “reasonable time” requirement laid down in Article 6 § 1; the Court therefore held, unanimously, that there had been a violation of Article 6 § 1. In addition, the Court found that Turkish law did not provide an effective remedy whereby the applicants could have contested the length of the proceedings and therefore held, unanimously, that there had been a violation of Article 13.   The Court awarded each applicant EUR 2,500 in respect of non-pecuniary damage and EUR 500 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 6 § 1 Bedri and Reşit Aslan v. Turkey (no. 63183/00) Yılmaz and Durç v. Turkey (no. 57172/00) Bedri and Reşit Aslan are Turkish nationals who were born in 1982 and 1972 respectively and live in Batman (Turkey); Hikmet Yılmaz and Ali Durç are Turkish nationals who were born in 1967 and 1974 respectively and, at the time their application was lodged, were detained in Nazilli Prison, Turkey. In 1999 Bedri and Reşit Aslan were given prison sentences of two years and six months and three years and nine months, respectively, for providing assistance to the PKK. Mr Yılmaz and Mr Durç were convicted in 1998 of aiding and abetting an armed organisation and were sentenced, respectively, to 30 years and 25 years in prison.   The applicants complained that their case had not been heard by an independent and impartial tribunal on the ground that a military judge had sat on the bench of the State security courts. In the case of Yılmaz and Durç v. Turkey , the applicants also complained of the unfairness of the proceedings leading to their conviction and raised other complaints. They relied in particular on Article 6 § 1 (right to a fair hearing).   The Court held, unanimously in both cases, that there had been a violation of Article 6 § 1 as regards the complaint that the state security courts had not been independent and impartial. As to the other complaints about the unfairness of the proceedings in the case of Yılmaz and Durç v. Turkey , the Court reiterated that a court whose lack of independence and impartiality had been established could not under any circumstances 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 considered that the present judgments constituted in themselves sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It awarded Mr Yılmaz and Mr Durç EUR 1,000 jointly for costs and expenses. (The judgments are available only in French.)   Şimşek v. Turkey (no. 72520/01)   Violation of Article 1 of Protocol No. 1 The applicant, Piryan Şimşek, is a Turkish national who was born in 1941 and lives in Freising (Germany).   Relying on Article 1 of Protocol No. 1 (protection of property), the applicant complained about the State’s delay in paying additional compensation for expropriation.   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and that the finding of a violation constituted sufficient just satisfaction for non-pecuniary damage. It awarded the applicant EUR 4,850 in respect of pecuniary damage and EUR 500 for costs and expenses.     ***   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.