CEDH · PRESS;GENERAL;ENG — 2 mai 2006

.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 } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sD479557A { width:330.91pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sDF2719B0 { width:90.14pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s944BDE53 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt } .s2D420026 { width:254.91pt; text-indent:0pt; display:inline-block } .s6066DECA { width:252.25pt; display:inline-block } .sC1D9546B { width:128.14pt; display:inline-block } .sE1A31597 { width:26.75pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA8754BFF { width:3.96pt; 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   253 2.5.2006   Press release issued by the Registrar   Chamber judgments concerning France and   Turkey   The European Court of Human Rights has today notified in writing the following four Chamber judgments, none of which is final [1] . (All four are available only in French.)   Two repetitive [2] cases can be found at the end of the press release.     Violation of Article 10 Aydın Tatlav v. Turkey (no. 50692/99)   Violation of Article 6 § 3 (b) Erdoğan Aydın Tatlav is a Turkish national who was born in 1957 and lives in Istanbul.   He is a journalist and the author of a book called   İslamiyet Gerçeği (The reality of Islam), the first edition of which was published in 1992. He mainly put forward the idea that religion had the effect of legitimising social injustices by portraying them as “God’s will”. The book was published in its fifth edition in October 1996. In four years 16,500 copies of the book were published in all.   Following a complaint, the applicant was questioned by the prosecutor and charged with “publishing a work designed to defile one of the religions”. On 19 January 1998 he was sentenced to one year’s imprisonment, which was converted into a fine. The applicant unsuccessfully appealed on points of law.   The applicant complained that his conviction had been in breach of Article 10 (freedom of expression) of the European Convention on Human Rights. Relying on Article 6 (right to a fair trial), he also complained of the unfairness of the proceedings that had led to his conviction.   The European Court of Human Rights noted that certain passages of the book contained strong criticism of religion in the socio-political sphere. However, the Court did not perceive an insulting tone to the comments aimed directly at believers or an abusive attack against sacred symbols, in particular Muslims, who on reading the book could nonetheless feel offended by the caustic commentary on their religion. The Court also took account of the fact that although the book had first been published in 1992, no proceedings had been instituted until 1996, when the fifth edition came out. It also noted that it was following a complaint by an individual that the prosecution had instituted proceedings against the applicant.   With regard to the punishment imposed on Mr Aydın Tatlav, the Court considered that a criminal conviction involving, moreover, the risk of a custodial sentence, could have the effect of discouraging authors and editors from publishing opinions about religion that were not conformist and could impede the protection of pluralism, which was indispensable for the healthy development of a democratic society.   That being the case,   the Court considered that the interference in question had not been “proportionate to the aim pursued” and held accordingly, unanimously, that there had been a violation of Article 10.   The Court pointed out that it had already held that failure to communicate the Principal Public Prosecutor’s opinion, having regard to the nature of his observations and the defendant’s inability to reply in writing, breached Article 6. Finding no reason to depart from that conclusion, the Court held, unanimously, that there had been a breach of Article 6 § 3 b).   Under Article 41 (just satisfaction), the Court awarded Mr Aydın Tatlav 3,000 euros (EUR)   for non-pecuniary and pecuniary damage, and EUR 52 for costs and expenses.     No violation Article 2 (death)   Violation of Article 2 (investigation) Halit Çelebi v. Turkey (no. 54182/00)   Violation of Article 13 The applicant, Halit Çelebi, is a Turkish national who was born in 1940 and lives in Istanbul. His son, Hayrullah Çelebi, was shot dead in November 1995 during a shoot-out with the security forces in Istanbul. He was 26 years old.   The facts are in dispute between the parties.   The applicant claimed that his son had been the victim of an extra-judicial killing.   The Turkish Government maintained that, after being tipped off by a presumed member of the PKK (Workers’ Party of Kurdistan), the security forces had attempted to arrest Hayrullah Çelebi and Biral Akbalık on 16 November 1995. When the police officers had ordered them to surrender, the men had opened fire and run off ignoring orders to stop. A shoot-out had ensued during which the applicant’s son was injured. He had died while being taken to hospital. Mr   Akbalık, who had given himself up to the police, confirmed that version of events before retracting his earlier statement during the criminal proceedings against him.   An inquest was opened immediately. In the course of the inquest an incident report was drawn up and a search carried out at the scene of the incident, which resulted in Hayrullah Çelebi’s weapon being found and 21 bullet shells. The autopsy showed that the victim had been hit by two bullets in the back and had died of internal haemorrhaging. In addition, an opinion had been obtained from a ballistics expert in respect of the weapons belonging to the police officers and the deceased and the bullet shells found at the scene and statements taken from the police officers who taken part in the operation, Birol Akbalık and the applicant and his wife.   In March 1996 proceedings for murder were instituted against the six police officers who had taken part in the events in question. The applicant joined the proceedings as a civil party and sought, among other things, a further inquiry. The Assize Court dismissed his claims and, in a judgment of 27 November 1998, acquitted the police officers on the ground that they had acted in self-defence. That judgment was upheld by the Court of Cassation.   The applicant complained that his son had been killed in circumstances that violated Article 2 (right to life) of the Convention and that there had not been an adequate and effective investigation into the death. Relying also on Article 13 (right to an effective remedy), he alleged that he had not had an effective remedy in that regard.   The Court noted that the applicant’s allegations that his son had been the victim of an extra-judicial execution were not based on sufficiently concrete and verifiable facts: they were not conclusively corroborated by any witness statement, apart from that of Birol Akbalık, or any other evidence. In those conditions, the conclusion that the applicant’s son had been the victim of extra-judicial execution was hypothetical and speculative rather than based on sound evidence. Accordingly, the Court found that Hayrullah Çelebi had been killed during a shoot-out with the security forces. The fact that fingerprints had not been taken from the victim’s weapon and the existence of powder on his hands had not been verified did not in itself undermine that conclusion.   The Court noted, among other things, that the use of force by the police officers was the direct result of   the violent reaction by Hayrullah Çelebi. They had been justified in thinking that there was a real risk that one of them or a civilian would be injured or killed by the fugitive, and in believing in good faith that it was necessary to retaliate in order to eliminate all risks. Moreover, the suspect’s flight had confronted the members of the security forces with developments to which they had had to react on the sport and rapidly adapt their conduct. Of the 21 bullets fired during the clash, 12 had been fired by police officers and nine by the fugitive. In that connection it should be noted that the role of the members taking part in the operation had been predetermined; three had been in charge of the arrest and the three others in charge of the perimeter. Moreover, only the first had used their weapons and had done so in conformity with the conditions laid down in the relevant rules. Accordingly, the Court held that the use of lethal force had not exceeded what had been “absolutely necessary” in order to   “defend any person against violence” and in particular “effect a lawful arrest”. Consequently, the Court concluded, unanimously, that there had not been a violation of Article 2 regarding the death of Hayrullah Çelebi.   Regarding the investigation into the death of the applicant’s son, the Court noted deficiencies liable to jeopardise the effectiveness of it. It observed in particular that evidence had not been heard from Birol Akbalık, the only known eyewitness to the shoot-out, in the Assize Court despite the fact that his evidence was crucial since it would have allowed a more reliable reconstruction of the incident. Furthermore, the presence of powder on the victim’s hand had not been verified whereas there had been an autopsy of the body; and fingerprints had not been taken from the weapon during the ballistics expert report or beforehand. Those measures might have been essential for establishing with accuracy the circumstances of the incident and verifying the applicant’s allegations. Lastly, although there had been nothing to prevent it, the request for a reconstruction of the events at the scene of the shoot-out had been dismissed by the Assize Court.   That being so, the Court concluded that the investigation had not been sufficiently meticulous; that had jeopardised the possibility of establishing with a higher degree of certainty the circumstances of the death of the applicant’s son. It therefore concluded, unanimously, that there had been a violation of Article 2 on that point. Lastly, the Court held that no effective criminal investigation could be considered to have been conducted in accordance with Article 13. Accordingly, it concluded unanimously that there had been a violation of that provision.   For just satisfaction, the Court awarded Mr Çelebi EUR 6,000   for non-pecuniary damage and EUR 3,000   for costs and expenses, less the EUR 685 already received from the Council of Europe in legal aid.     Repetitive cases   In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention:   de Luca v. France (application no 8112/02)   Violation of Article 6 § 1 (fairness) The applicant, Marino de Luca, is an Italian national born in 1955 and living in Gorizia (Italy). In 1998 he was sentenced to a fine of the equivalent of 1,067,073.17 euros (EUR) for submitting false declarations of origin on imports of calf’s sweetbread from the United States.   The applicant complained of the unfairness of the proceedings in the Court of Cassation on account of the failure to communicate the reporting judge’s report and the advocate-general’s submissions, and the latter’s presence at the Court of Cassation’s deliberations. He relied on Article 6 § 1 (right to a fair trial).   The Court held, unanimously, that there had been a violation of Article 6 § 1 because: the reporting judge’s report had not been communicated to the applicant prior to the hearing, whereas it had been sent to the advocate-general; the tenor of the advocate-general's submissions had not been communicated, with the result that the applicant had been unable to reply; and, the advocate-general had been present at the deliberations of the Court of Cassation. It awarded the applicant EUR 1,000   for costs and expenses.   Saint-Adam and Millot v. France (no. 72038/01) Violation of Article 6 § 1 (fairness) The applicants, Jean-Patrick Saint-Adam and his wife Edwige Millot, are French nationals who were born in 1950 and 1965 respectively and live in Paris.   In 1992 Crédit Lyonnais brought proceedings against the applicant and his wife for defaulting on the monthly repayments of a property loan granted to the applicant by the bank and guaranteed by his wife. They lodged a counter-claim against the bank, seeking to have the loan declared null and void on the ground that the bank had not sent them the depreciation schedule with the loan offer, which had been a statutory requirement at the time. The Dijon Court of Appeal found in their favour.   While the case was pending, Law no. 96-314 of 12 April 1996 “making various economic and financial provisions” came into force, section 87(1) of which amended, with retrospective effect, the provisions of the Consumer Code relating to loan offers. The Court of Cassation quashed the judgment and remitted the case to Besançon Court of Appeal, which, in application of the 1996 Law, ordered the applicants to repay the amounts due to the bank.   The applicants claimed that the retrospective application of the 12 April 1996 Law had infringed their right to a fair hearing. They relied on Article 6 § 1 (right to a fair hearing). The Court noted that the enactment of the 12 April 1996 Law had in reality determined the substance of the dispute and made any continuation of the proceedings futile. There had not therefore been equality of arms between the two private parties, since the State had found for one of them by having the Law in question enacted. With regard to whether the interference had been in the public interest, the Court reiterated that in theory a financial ground could not alone justify this sort of legislative measure. In the present case there had been nothing to support the French Govenment’s argument that, without the enactment of the Law in question, the impact would have been so great that it would have endangered the stability of the banking sector and economic activity in general.   In the Court’s view, the legislative measure had not been justified by compelling grounds of the general interest. Accordingly, it held, unanimously, that there had been a breach of Article 6   §   1. The Court awarded the applicants EUR 5,000   euros jointly for non-pecuniary damage and EUR 10,000 for costs and expenses. The Court found that the question of just satisfaction was not ready for decision regarding pecuniary damage and accordingly reserved the whole of that question.   ***   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 ).   Contacts pour la presse     Emma Hellyer (téléphone : 00 33 (0)3 90 21 42 15) Stéphanie Klein (téléphone : 00 33 (0)3 88 41 21 54) Beverley Jacobs (téléphone : 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. [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.