CEDH · PRESS;GENERAL;ENG — 4 mai 2006

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Greece (No. 2) (application no 28340/02) Violation of Article 6 § 1 (fairness) The applicant, Dimitrios Examiliotis, is a Greek national who was born in 1936 and lives in Athens.   In 1991 the applicant brought an action for damages against the State. He complained that, owing to mistakes made by an official at the Corinth prosecutor’s office and certain police officers at Ano Liossia, he had not been served with a summons to appear before the criminal court and had been unaware that criminal proceedings were pending against him. As a result he did not find out until December 1988, when he was served with notice of his conviction, that the Corinth criminal court had, in 1986, convicted him of embezzlement and sentenced him to three months’ imprisonment.   The Athens administrative court dismissed his action for damages as being out of time, on the ground that the five-year time-limit ran from the date on which the impugned act had occurred, namely when the court delivered its judgment, and not from the date on which the applicant had become aware of it. He unsuccessfully lodged an appeal.   The applicant argued that the dismissal of his action for damages had entailed a violation of Article 6 § 1 (access to a court) of the European Convention on Human Rights.   The European Court of Human Rights noted that the applicant had been unaware of the date of the criminal court hearing owing to the negligence of state authorities. It could not therefore be reasonable to require him to bring an action within a period running from the date on which his conviction was pronounced in absentia , when he had no means of knowing the date of the hearing. The Greek courts’ interpretation of the legislation had imposed an obligation on the applicant that he had not been in a position to fulfil. Accordingly, the Court held, unanimously, that there had been a violation of Article 6 § 1 and awarded Mr Examiliotis 5,000 euros (EUR) in respect of non-pecuniary damage, together with EUR 4,600 for costs and expenses. (The judgment is available only in French.)   Ambruszkiewicz v. Poland (no. 38797/03)   Violation of Article 5 § 1 The applicant, Stanisław Ambruszkiewicz, is a Polish national who was born in 1961 and lives in Szczecinek (Poland).   In 2002 the applicant was placed under judicial investigation for making false accusations about certain local police officers and judges to their superiors. He was summoned to appear before the Szczecinek district court and was remanded in custody for three months for obstructing the proceedings, as he had failed to reappear after an adjournment of the hearing.   He was arrested on 19 May 2003 and detained until 23 July 2003. The proceedings against him are still pending before the Polish courts.   The applicant complained under Article 5 § 1 (c) (right to liberty and security) that his detention on remand had been arbitrary and unlawful.   The Court noted that the offence with which he was charged carried a possible prison sentence of two years under Article 234 of the Criminal Code, and that his detention therefore had a statutory basis in Polish law.   In remanding and maintaining the applicant in custody, the authorities had referred, among other things, to the need to guarantee the proper conduct of the criminal proceedings and, more especially, to the fear that the applicant might attempt to abscond. However, it was difficult to identify any evidence in support of the allegation that he might have absconded: Mr Ambruszkiewicz had been remanded in custody after the very first hearing in his case because he had left the courtroom without authorisation, and neither the complexity of the case nor his potential sentence would have made him more likely to abscond.   Moreover, in view of the subject-matter of the proceedings, the court dealing with the case was under a particular obligation to act without showing any sign of bias. In addition, in spite of a number of applications lodged by the applicant’s counsel, the authorities had failed to consider applying any of the less intrusive measures available under Polish law.   Under those circumstances, the Court held, unanimously, that there had been a violation of Article 5 § 1 and awarded the applicant EUR 3,000 in respect of non-pecuniary damage. (The judgment is available only in French.)     Celejewski v. Poland (no. 17584/04)                                                   Violation of Article 5 § 3 Miskurka v. Poland (no. 39437/03)                                                     Violation of Article 5 § 3 Michta v. Poland (no. 13425/02)   Violation of Article 5 § 3 & Violation of Article 8 The applicants, Włodzimierz Celejewski, Cezary Miszkurka and Sebastian Michta are all Polish nationals who were born in 1963, 1968, and 1976 respectively. Mr Celejewski is currently detained in Częstochowa Detention Centre. Mr Miskurka lives in Lublin (Poland) and Mr Michta lives in Gliwice (Poland).   The applicants all complained about the length of their pre-trial detention, which lasted over three years and nine months, three years and seven months and almost three years respectively on charges, respectively, of kidnapping including ransom, illegal possession of weapons and burglary.   They all relied on Article 5 § 3 (right to be brought promptly before a judge).   In Michta the Court also decided itself to raise the issue of Poland’s compliance with Article 8 (right to respect for correspondence), given the monitoring of the applicant’s correspondence with the Court.   In all three cases, finding that the grounds given by the domestic authorities were not “sufficient” and “relevant” to justify the applicant’s being kept in detention for the times in question, the Court held (by six votes to one in Celejewsk and unanimously in Miskurka and Michta ) that there had been a violation of Article 5 § 3.   In Michta , since the Polish Government confirmed that the censorship of the applicant’s correspondence with the Court was contrary to domestic law, the Court further held, unanimously, that there had also been a violation of Article   8.   The Court awarded Mr   Celejewski EUR   1,000, Mr Miskurka EUR   1,500 and Mr Michta EUR 1,500 for non-pecuniary damage. (All three judgments are only available in English.)   Dudek v. Poland (no. 633/03)   No violation Article 5 § 3 The applicant, Bolesław Dudek, is a Polish national, born in 1959 who lives in Hamburg (Germany).   He was detained on remand from 25 July 2001 until 1 August 2003 (over two years) on suspicion of trafficking in drugs and human beings. On 16 December 2004, he was ultimately convicted only in relation to his running a night club and possessing cannabis. The applicant submitted that due to a mistake by his lawyer, he did not lodge a cassation appeal against that judgment, which is now final. Part of the criminal proceedings against him are still pending.   The Court found that as part of the criminal proceedings against the applicant were still pending, he could, and should, put the substance of his complaint before the domestic authorities and ask for appropriate relief.   As regards the part of the proceedings which ended with the judgment of 16 December 2004, the Court noted that the applicant submitted that he had not lodged a cassation appeal. Therefore, the Court rejected the applicant’s complaint for non-exhaustion of domestic remedies and held, by six votes to one, that there had been no violation of Article 5 § 3. (The judgment is only available in English.)     Violation of Article 10 Alinak and Others v. Turkey (no. 34520/97)   Violation of Article 6 § 1 (fairness) The applicants, Mahmut Alınak, Sedat Yurttaş, Sırrı Sakık and Ahmet Türk, are all Turkish nationals. They were born in 1952, 1961, 1942 and 1957 respectively and live in Ankara. They are former Members of Parliament from the political party DEP ( Demokrasi Partisi – Democracy Party) who were elected on the list of the political party SHP ( Sosyal Demokrat Halkçı Parti – People’s Social Democrat Party) in the 1991 elections. In March 1994 the National Assembly lifted the parliamentary immunity of some of the DEP’s MPs, including that of the applicants. In June 1994 the Constitutional Court ordered the dissolution of the DEP on the ground that it had undermined the territorial integrity of the State and national unity.   On 8 December 1994 Ankara State Security Court sentenced Mr Sakık and Mr Alınak to three years’ imprisonment, Mr Türk to 15 years’ imprisonment and Mr Yurttaş to seven-and-a-half years’ imprisonment, on the ground that they had engaged in intensive separatist activity, in particular by giving speeches under the PKK banner. On 11 April 1996 the State security court, following the remittal of the case by the Court of Cassation, reduced the applicants’ prison sentences to 14 months.   With the exception of Mr Yurttaş, who had already raised the complaint in a separate application to the European Court of Human Rights, the applicants contended that their convictions had interfered with their right to freedom of expression and had entailed a violation of Article 10 (freedom of expression). Moreover, they complained under Article 6 (right to a fair trial) that the proceedings resulting in their conviction had been unfair.   The Court noted that, in the impugned speeches, the applicants had mainly been calling for recognition of Kurdish identity and had condemned the “policy of violence” implemented by Turkey in areas where the majority of citizens were of Kurdish origin. In that connection the Court reiterated that, while freedom of expression was important for everybody, it was especially so for an elected representative of the people, who represented his electorate, drew attention to their preoccupations and defended their interests.   The Court considered that the reasons given by the Turkish courts could not in themselves be regarded as sufficient to justify the interference with the applicants’ right to freedom of expression. It was true that certain particularly virulent passages of the speeches in question had painted a most negative picture of the policy that Turkey had once implemented in respect of the Kurdish question and had thus given that policy a hostile connotation. However, the Court noted that the applicants had been speaking in their capacity as politicians in the context of their role as figures of Turkish political life, that they had not incited violence, armed resistance or even an uprising, and that their comments had not amounted to hate speech, which, in the Court’s opinion, was the essential element to be taken into consideration. The Court also took into account the nature and severity of the punishment imposed on the applicants.   In those circumstances the Court held, unanimously, that there had been a violation of Article 10 in respect of Mr Alınak, Mr Sakık and Mr Türk.   Moreover, the Court held, unanimously, that there had been a violation of Article 6 § 1 as regards the complaint that the State security court had lacked independence and impartiality. Reiterating that a court whose lack of independence and impartiality had been established could not in any circumstances guarantee a fair trial to the persons subject to its jurisdiction, the Court considered that it was not necessary to examine the other complaints concerning the unfairness of the proceedings.   By way of just satisfaction, the Court awarded Mr Alınak, Mr Sakık and Mr Türk EUR 7,500 each in respect of non-pecuniary damage. In addition, it awarded the applicants EUR 4,000 jointly for costs and expenses. (The judgment is available only in French.)   Violation of Article 10 Ergin v. Turkey (no. 6) (no. 47533/99)   Violation of Article 6 § 1 (fairness) The applicant, Ahmet Ergin, is a Turkish national who was born in 1973 and lives in Istanbul.   The applicant, who was the editor of the newspaper Günlük Emek (Everyday Work), published in September 1997 an article entitled “Giving the conscripts a send-off, and collective memory” ( Asker uğurlamalar ve toplumsal hafıza ), which formed a critique of the now-traditional ceremony to mark the departure of soldiers leaving to perform their military service; in literary language the author explained that the enthusiasm surrounding those departures was a denial of the tragic end which awaited some of the conscripts concerned, namely death or mutilation.   On 20 October 1998 the General Staff Court found him guilty of incitement to evade military service and sentenced him to two months’ imprisonment, which it commuted to a fine. An appeal by the applicant on points of law was dismissed on 10 February 1999.   The applicant submitted that his conviction had infringed his freedom of expression and breached Article 10. Relying on Article 6 (right to a fair trial), he further complained that the proceedings that had led to his conviction had been unfair, in particular on account of the General Staff Court’s lack of independence and impartiality.   The Court considered that the reasons given by the Turkish courts could not be regarded in themselves as sufficient to justify the interference with the applicant’s right to freedom of expression. It observed, among other things, that, although the words used in the offending article gave it a connotation hostile to military service, they did not exhort the use of violence or incite armed resistance or rebellion, and they did not constitute hate-speech, which, in the Court’s view, was the essential element to be taken into consideration. The article had been published in a newspaper on sale to the general public and did not seek, either in its form or in its content, to precipitate immediate desertion.   The Court found that the applicant’s criminal conviction did not correspond to a pressing social need and had therefore not been “necessary in a democratic society”. It therefore held unanimously that there had been a violation of Article 10.   As regards the complaint relating to the independence and impartiality of the General Staff Court, the Court first took formal note of the information supplied by the Turkish Government to the effect that Turkish legislation had been amended to bring it into line with Convention requirements.   It considered that the determination of criminal charges against civilians by courts composed, if only in part, of members of the armed forces could be held to be compatible with Article 6 only in exceptional circumstances; it derived support in that approach from developments at international level in recent years. It expressed the view that the power of military criminal justice should not extend to civilians unless there were compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis.   It further considered that it was understandable that the applicant, a civilian standing trial before a court composed exclusively of military officers, charged with offences relating to propaganda against military service, should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings. Accordingly, the applicant could legitimately fear that the General Staff Court might allow itself to be unduly influenced by partial considerations. The applicant’s doubts about the independence and impartiality of that court could therefore be regarded as objectively justified. The Court therefore held unanimously that there had been a violation of Article   6   §   1.   As regards 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 those subject to its jurisdiction; it therefore considered that there was no cause to examine the complaint concerned.   By way of just satisfaction, the Court awarded the applicant EUR 2,000 for non-pecuniary damage and EUR 1,500   EUR for costs and expenses. (The judgment is available in French and English.)   Maçin v. Turkey (no. 52083/99)   Violation of Article 5 §§ 3 and 4 Mehmet Ertuğrul Yılmaz and Others v. Turkey (no. 41676/98) Violation of Article 5 § 3 Rüzgar v. Turkey (no. 59246/00)   Violation of Article 5 §§ 1 (c) and 3   Maçin v. Turkey Emrullah Maçin and Riza Maçin are Turkish nationals who were born in 1974 and 1962 respectively. The applicants were both arrested and taken into police custody on 29   September 1998 in the course of an operation against the PKK. On 5 October 1998 they were brought before a judge, who ordered the release of Riza Maçin and placed Emrullah Maçin in detention pending trial.   Mehmet Ertuğrul Yılmaz and Others v. Turkey Mehmet Ertuğrul Yılmaz, Murat Han, Gültekin Açık and Çiçek Han are Turkish nationals who were born in 1969, 1970, 1973 and 1970 respectively. They are currently prisoners in the prisons of İzmir and Uşak (Turkey). They were arrested on suspicion of belonging to an illegal organisation, the TKP/ML-B ( Türkiye Komünist Partisi / Marksist-Leninist Birlik   – Communist Party of Turkey/Marxist-Leninist Union), and taken into police custody on 16   December 1996, except for Mrs Han, who was arrested on 18 December. On 24 December 1996, they were brought before a judge, who placed them in detention pending trial.   Rüzgar v. Turkey Zeki Rüzgar is a Turkish lawyer who was born in 1966 and lives in Ankara. He was arrested on suspicion of belonging to an illegal armed organisation, the DHKP/C ( Devrimci Halk Kurtuluş Partisi / Cephesi , Revolutionary Party/Front for the Liberation of the People), and taken into police custody on 8 January 1999. He remained in police custody until 13 January, when he was brought before a judge who placed him in detention pending trial.   In the above three Turkish cases the applicants complained, among other allegations, of the length of time they had been held in police custody; they relied on Article 5 (right to liberty and security). In the Maçin case the applicants further complained that they had not had a remedy whereby they could complain of the excessive length, and in the Rüzgar case the applicant complained that his detention in police custody had been unlawful.   The Court noted that Mr Emrullah Maçin and Mr Riza Maçin had been held in police custody for six days, the applicants in the Mehmet Ertuğrul Yılmaz and Others case between seven and nine days and Mr Rüzgar, five days. It could not accept that it had been necessary to detain the applicants for such a length of time before taking them before a judge. It accordingly held unanimously that there had been violations of Article 5 § 3 in all three cases.   As regards the lack of a remedy to challenge the duration of detention by the police, the Court observed that it had repeatedly held that the remedy provided in Article 128 § 4 of the Code of Criminal Procedure which the Turkish Government had relied on did not satisfy the requirements of Article 5 § 4. Consequently, in the Maçin case , the Court also found a violation of Article 5 § 4.   Lastly, the Court noted that in the Rüzgar case the public prosecutor had extended the applicant’s detention in police custody beyond the four days he was empowered to authorise, without any warrant from a judicial authority. The additional period could not therefore be considered to have been lawful, and the Court unanimously found a violation of Article   5   §   1   (c).   By way of just satisfaction, the Court awarded Mr Emrullah Maçin and Mr Riza Maçin EUR   1,000   each for non-pecuniary damage and EUR 1,500   jointly for costs and expenses, less EUR 685 already received from the Council of Europe in legal aid. In the Mehmet   Ertuğrul Yılmaz and Others case it awarded, for non-pecuniary damage, EUR 1,500 to Mrs Çiçek Han and EUR 2,500   each to Mr Yılmaz, Mr Açık and Mr Murat Han. It also awarded the applicants EUR 870   jointly for costs and expenses. Lastly, the Court awarded Mr   Rüzgar EUR 2,000   for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgments are available only in French.)     Length-of proceedings cases   In the following five cases the applicants complained of the excessive length of civil or administrative proceedings. In the case of Mantzila v. Greece , the applicant also relied on Article 13 (right to an effective remedy).     Violation of Article 6 § 1 (length) Shacolas v. Cyprus (no. 47119/99) Ekdoseis N. Papanikolaou A. E. v. Greece (no. 13332/03) Filippos Mavropoulos – Pan. Zisis O. E. v. Greece (no. 27906/04) Jenčová v. Slovakia (no. 70798/01)   Violation of Article 6 § 1 (length) Mantzila v. Greece (no. 25536/04)   Violation of Article 13   ***   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 ).         Press Contacts   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)   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. [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.