CEDH · PRESS;GENERAL;ENG — 12 janvier 2006

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[1]   A repetitive case [2] and a length-of-proceedings case, with the Court’s main finding indicated, can also be found at the end of the press release.   Violation of Article 6 § 1 (fairness)   Two violations of Article 1 of Protocol No. 1 Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01) The applicants are 15 Bulgarian nationals who live in Sarnitza (Bulgaria). They are the heirs of Fatma Bozova, who owned land in the vicinity of Sarnitza until the collectivisation of agricultural land in the 1950s.   On 29 June 1995 the applicants were given title to part of the plots of land claimed. That decision was upheld by the Supreme Court on 20 September 1996 in proceedings to which the local land commission, a State body, and the applicants were parties. In 1997, the applicants took possession of 140 ha plots of land adjacent to the Dospat Reservoir, in the Okusha area near Sarnitza.   Following proceedings brought by the local forestry authority, however, in October 2000 the Supreme Court of Cassation reconsidered the issues determined in the 1995-6 proceedings and found that the applicants were not legally entitled to the land and ordered them to vacate it. Certain applicants were also fined for unlawful use of the land.   On 24 May 2000 they reported to the police that their hut had been set on fire.   The applicants complained that final legal decisions in their favour were disregarded by the Bulgarian courts and that they were consequently deprived of their property. They also complained that a campaign was launched against them and that they were fined for using their own property. They relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights.   The European Court of Human Rights noted that both sets of proceedings determined the property rights of the same legal subjects, the applicants and the State, and found that the Supreme Court of Cassation’s judgment of October 2000 set at naught an entire judicial process which had ended in a final judicial decision which had, moreover, been executed. By depriving of any legal effect the final judgment of 20 September 1996 in the applicants’ case, the authorities acted in breach of the principle of legal certainty inherent in Article 6 § 1.   The Court therefore held unanimously that there had been a violation of Article 6 § 1 in respect of the civil proceedings.   Concerning Article 1 of Protocol No. 1, the Court found that the applicants had a possession (plots of land near Sanitza) which was taken from them by the State. The deprivation of the property at issue was unlawful, given the failure to recognise the final judgment delivered in the case. It could not be considered that a public interest overriding the fundamental principle of legal certainty and the applicants’ rights justified a re-examination of the dispute and the resulting deprivation of property without compensation. The Court therefore held, unanimously, that the applicants were deprived of their property in violation of Article 1 of Protocol No. 1.   The Court further held unanimously that the fining of one of the applicants for using his own land was in violation of Article 1 of Protocol No. 1. The Court considered that it was not necessary to examine whether Article 6 applied in the proceedings leading to the imposition of the fines and, if so, whether those proceedings were conducted in breach of that article.   The Court held that the question of the application of Article 41 was not ready for decision in so far as pecuniary and non-pecuniary damage and costs incurred for a valuation report were concerned, and awarded the applicants 500 euros (EUR) for costs and expenses. (The judgment is available only in English.)   Mihailova v. Bulgaria (no. 35978/02)   No violation of Article 8 The applicant; Petranka Ivanova, is a Bulgarian national who was born in 1975 and lives in Dobrich (Bulgaria).   She married in June 1994 and gave birth to a girl in November 1995. The couple separated in July 2000 and the applicant moved into her sister’s apartment and her husband returned to his parents’ house with their daughter. The applicant spent short periods of time with her daughter.   The couple divorced on 18 April 2001 and custody was given to the applicant. That judgment was enforced on 29 November 2001, but the same day, as the parties left the courtroom, the applicant’s former husband took back their daughter. The enforcement proceedings continued, but were unsuccessful, however; the child continued living with her father, refusing to go with her mother.   On 16 January 2004 custody was given to the applicant’s former husband, with the applicant having the right to spend every second weekend with her daughter and to see her for five weeks during holiday periods.   The applicant complained that the domestic authorities did not enforce the 2001 judicial order granting her the custody of her daughter and eventually transferred custody to the father. She also maintained that her daughter suffered anguish and psychological trauma as a result of the interventions of the authorities and the protracted judicial proceedings. She relied on Article 8 (right to respect for private and family life). She further complained about the length of the enforcement proceedings and that they did not result in the execution of the custody order, relying on Article 6 § 1 (right to a fair hearing).   The European Court of Human Rights noted that the applicant had not shown that she was seeking the assistance of the authorities to realise preparatory contacts with her daughter and that they failed to do what was necessary in the circumstances. The facts of the case demonstrated that obstruction by the applicant’s former husband, but also the applicant’s own lack of understanding for the need of a careful preparation as a precondition to effective enforcement of her custody rights, played a significant role in the events.   The Court also noted that the applicant’s former husband, who tried to avoid the enforcement of the custody agreement, was repeatedly fined, that the police made efforts to put pressure to bear on him and that the applicant did not request a partial revision of the contact measures as she could have under Article 106 § 5 of the Family Code or interim measures in the revision proceedings instituted by her former husband.   The Court concluded that the authorities did what was reasonable in the circumstances to enforce the custody agreement between the applicant and her former husband. The fact that those attempts were unsuccessful did not disclose a failure to comply with Article 8.   As to the judgment of 16 January 2004 whereby the custody measures were revised, the Court considered that it was based on relevant and sufficient grounds, in the light of the child’s best interest.   In so far as the applicant stated that the enforcement proceedings were a traumatic experience for her daughter, the Court saw no indication that the authorities acted in disregard of the psychological vulnerability of the child. It had not been shown either that the child was in danger or that the authorities failed to protect her.   The Court therefore held unanimously that there had been no violation of Article 8. It also held, unanimously, that it was unnecessary to examine separately the applicant’s complaints under Article 6 § 1. (The judgment is available only in English.)     No violation of Article 2 Bayrak and Others v. Turkey (no. 42771/98)   No violation of Article 13 The 15 applicants are all are Turkish nationals and close relatives of Abdulkadir Bayrak and Medeni Şimşek, who were both killed in September 1993 in an attack for which no one claimed responsibility.   In the afternoon of 23 September 1993 Abdulkadir Bayrak and Medeni Şimşek were both killed by gunfire while walking along the street in Mardin. In the course of the investigation immediately afterwards, evidence was taken from witnesses and samples collected at the scene of the attack.   Following an operation against Hizbullah in 1995, fresh intelligence was obtained by the authorities concerning the killing of the applicants’ close relatives. Criminal proceedings were brought against the suspected perpetrators in 2002. Three sets of proceedings against suspected leaders and members of Hizbullah are currently pending in Diyarbakır Assize Court.   The applicants alleged that their relatives were both victims of an extrajudicial execution and that the authorities did not carry out an effective investigation into the circumstances of their deaths. They relied on Articles 2 (right to life), 6 (right to a fair hearing) and 13 (right to an effective remedy).   In the light of the evidence available to it, the Court observed that Turkey’s responsibility in the killing of the applicants’ relatives had not been established beyond all reasonable doubt. Accordingly, it held that there had been no violation of Article 2 on that account.   As to the investigation into the case, the Court observed that the authorities could not be criticised for any lack of diligence. The judicial measures of investigation into the attacks perpetrated by Hizbullah had clearly required substantial work. As a result of their efforts, the authorities had been able to bring to justice those suspected of killing the applicants’ relatives, even though that outcome had taken a number of years. The investigation, although still ongoing, had not been lacking in effectiveness and it could not be argued that the Turkish authorities had remained passive with regard to the circumstances in which the applicants’ close relatives had been killed. Accordingly, the Court held that there had been no violation of Article 2 on that account either.   As to the complaints that there had been no effective remedy, the Court decided to examine them under Article 13 alone. Considering that Turkey could be regarded as having conducted an effective criminal investigation, the Court held, unanimously, that there had been no violation of Article 13. (The judgment is available only in French.)     Violation of Article 3 (inhuman treatment) Nazif Yavuz v. Turkey (no. 69912/01)   Violation of Article 13 The applicant, Nazif Yavuz, is a Turkish national who was born in 1970 and lives in Istanbul. At the material time, he was a deputy superintendent in the national police force.   On 14 June 1996 he was arrested and held in police custody on suspicion of helping to set up a criminal organisation. On 18 June he was examined by a doctor, who did not find any injuries on his body. At the end of the custody, on 26 June 1996, the applicant underwent a further medical examination, which revealed that he had pale yellow bruising under the left eye and on the eyelid, and could not work for three days.   The applicant lodged a criminal complaint, alleging ill-treatment, against the police officers who had supervised him while in custody. He contended that he had been subjected, in particular, to Palestinian hanging, beating, insults, threats and electric-shock treatment. Criminal and administrative investigations were opened and are still pending. Disciplinary proceedings were brought against the police officers in question, but were discontinued.   The applicant complained under Articles 3 (prohibition of inhuman or degrading treatment) and 13 (right to an effective remedy) that he had been subjected to ill-treatment while in police custody and that his allegations had not been investigated thoroughly.   The Court noted that the Turkish Government had failed to give any explanation as to the cause of the bruising, which had undoubtedly occurred while the applicant was in police custody, although it was not totally consistent with the ill-treatment he had complained of. However, since the Government had given no plausible explanation, the Court considered that in the present case the bruising had originated in inhuman treatment for which Turkey was responsible. Accordingly, the Court held, unanimously, that there had been a violation of Article 3.   Moreover, having regard to the circumstances of the case, the Court considered that the investigation into the allegations could not be regarded as effective or capable of leading to the identification and punishment of those responsible for the events at issue. It therefore held, unanimously, that there had been a violation of Article 13.   By way of just satisfaction, the Court awarded the applicant EUR 5,000 in respect of non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.)     Repetitive case   In the following case the Court has reached the same findings as in similar cases raising the same issues under the Convention:   Sciarrotta and Others v. Italy (no. 14793/02) Violation of Article 1 of Protocol No. 1 The applicants, Eleonora Sciarrotta, Carmela Sciarrotta and Carmela Guarino, are Italian nationals who were born in 1948, 1947 and 1923 respectively and live in Scandicci (Italy).   The authorities took possession of land belonging to the applicants with a view to expropriating it and began to carry out building work on that land. Since no expropriation order had been issued and no compensation paid to the applicants, they brought proceedings seeking damages for the unlawful occupancy of their land.   The applicants submitted that the occupancy of their land had deprived them of their property in violation of Article 1 of Protocol No. 1 (protection of property).   The Court considered that the loss of all ability to dispose of the land, combined with the impossibility of remedying the situation, amounted to de facto expropriation, in breach of the applicants’ right to peaceful enjoyment of their possessions. It accordingly held, unanimously, that there had been a violation of Article 1 of Protocol No. 1. The Court found that the question of the application of Article 41 (just satisfaction) was not ready for decision and therefore reserved it. (The judgment is available only in French.)   Length-of-proceedings case   In the following case the applicant complained, in particular, of the excessive length of civil proceedings.   Nicolau v. Romania (no. 1295/02)                                             Violation Article 6 § 1 (length) The Court awarded: -   for non-pecuniary damage: EUR 2,000.     ***   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. [2] in which the Court has reached the same findings as in similar cases raising the same issues under the European Convention on Human Rights