CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 24 octobre 2006

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[1]   Repetitive cases [2] and length-of-proceedings cases, with the Court’s main finding indicated, can also be found at the end of the press release.     Edwards v. Malta (application no 17647/04) Violation of Article 1 of Protocol No. 1 The applicant, Joseph John Edwards, has dual nationality, British and Maltese. He was born in 1919 and lives in London.   The applicant’s tenement and an adjacent field were requisitioned by a Government order issued between 1975 and 1976 in order to provide housing for homeless people. The applicant was paid MLT 28 (approximately EUR 67) per year in compensation but nothing for the loss of the field.   The applicant took proceedings before the Constitutional Court. He recalled that he had been deprived of his property for almost 30 years and complained about the amount of rent he received which he considered ridiculous in comparison to the market value of the property. In its judgment delivered on 25 February 2005 the court concluded that the requisition and amount of rent were in accordance with the case-law of the European Court of Human Rights.   The applicant complained about the requisition of his property. He relied on Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights.   The Court noted that the requisition order imposed a landlord-tenant relationship on the applicant and that he had no influence on the choice of the tenant or any of the essential elements which make up such an agreement. Furthermore, it observed that the EUR 6 per month awarded as compensation for the loss of the control over his property was insufficient and did not meet his legitimate interest to derive profit from his property.   The Court concluded that a disproportionate and excessive burden had been imposed on the applicant in that he had had to bear most of the social and financial costs of supplying accommodation to another family. It followed that the Maltese State had failed to strike the requisite fair balance between the general interests of the community and the protection of the applicant’s property rights. The Court therefore held, unanimously, that there had been a violation of Article 1 of Protocol No. 1. It reserved its decision regarding just satisfaction for a later date. (The judgment is available only in English.)     Kusyk v. Poland (no. 7347/02)   No violation of Article 5 § 3 The applicant, Dariusz Kusyk, is a Polish national who was born in 1964 and lives in Zawada (Poland).   The applicant was arrested in June 1999 and convicted of armed robbery and theft in November 2000. That judgment was quashed in April 2001 and the applicant was again convicted for the same offence in October 2002. His numerous requests for release and appeals against the prolongation of his detention were rejected.   The applicant complained about the length of his detention on remand. He relied on Article 5 § 3 (right to liberty and security).   The Court found that the reasons relied on by the domestic courts to keep the applicant in detention were relevant and sufficient. Taking into account that the case was relatively complex on account of the seriousness and number of charges against the applicant, the Court also found that the domestic authorities handled the applicant’s case relatively quickly. The Court therefore held by five votes to two that there had been no violation of Article 5 § 3. (The judgment is available only in English.)   Szwagrun-Baurycza v. Poland (no. 41187/02)   Violation of Article 6 § 1 (fairness) The applicant, Leokadia Szwagrun-Baurycza, is a Polish national who lives in Mirków.   In November 1975 the applicant’s parents asked a court to declare that they had acquired ownership of a plot of land which had been in their possession for more than 15 years. The proceedings were stayed in July 1976 as they failed to establish the addresses of all the potentially concerned parties.   In September 1993 Ostrów Wielkopolski District Court, following a request made by the applicant (who had in the meantime inherited her parents’ estate with her sister) appointed a court officer to represent the parties who were potentially affected by the proceedings but whose addresses were unknown. The court also ordered the publication of a press notice to summon other potentially concerned parties.   The proceedings were subsequently stayed in January 1997 as the applicant had failed to comply with a renewed order to indicate the names and addresses of the successors of those who had died since the appointment of the court officer. The applicant’s subsequent attempts to advance the proceedings were unsuccessful, the courts repeatedly relying on her failure to identify all the potential parties to the proceedings and give their addresses. The court finally decided to discontinue the proceedings in February 2005. The applicant’s later efforts to have that decision set aside failed for similar reasons.   The applicant complains about the refusal of the domestic courts to resume the proceedings. She relied on Article 6 § 1 (access to a court).   The Court observed that the applicant repeatedly drew the courts’ attention to the fact that she was unable to establish the names and addresses of the legal successors of the former owners. Despite her arguments, the courts repeatedly ordered her to submit the names and addresses of potential litigants, notwithstanding the fact that it had been accepted at a much earlier stage that the applicant required the assistance of the court in order to comply with this obligation. Moreover, in February 2005, she requested that the court publish a further press notice.   Lastly, the Court noted that no decision on the merits of the case had been given, despite the fact that the proceedings had lasted 30 years. In the circumstances, it considered that the applicant was made to shoulder an unfair burden in the course of the proceedings to the point where she was denied effective access to court.   Accordingly, there had been a violation of Article 6 § 1 of the Convention.   The Court held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 8,000 in respect of non-pecuniary damage. (The judgment is available only in English.)     Violation of Article 5 § 3 Stemplewski v. Poland (no. 30019/03) Żak v. Poland (no. 31999/03) Zych v. Poland (no. 28730/02) The three applicants are all Polish nationals who live in Poland.     Tomasz Stemplewski , who was born in 1974 and lives in Poznań, was arrested and placed in pre-trial detention in August 2000 on suspicion of drug trafficking and membership of a criminal association. On 20 April 2004 he was found guilty and sentenced to seven years’ imprisonment.   Sławomir Żak , who was born in 1962 and is detained in Lublin, was placed in pre-trial detention on 8 November 2000 on account of his suspected involvement in a murder. His conviction and sentence of 25 years’ imprisonment was set aside on appeal. The case is currently pending before the Polish courts.   Leszek Zych , who was born in 1966 and lives in Bydgoszcz, was arrested and placed in pre-trial detention on 15 May 1998 on suspicion of being involved in drugs trafficking. He was released under police supervision on 20 November 2002. His first-instance conviction and sentence of six years and six months’ imprisonment was set aside on appeal. The case is currently pending before the Polish courts.   Relying on Article 5 § 3 (right to liberty and security), the applicants complained, among other things, of the length of their pre-trial detention.     The Court noted that the applicants had been held in pre-trial detention for a total of three years, eight months and 17 days in the case of Mr Stemplewski, four years, one month and 12 days in the case of Mr Żak and about three years and eight months in the case of Mr Zych. In the Court’s opinion, the reasons put forward by the Polish authorities were not sufficient to justify the applicants’ continued detention for such long periods. Accordingly, the Court concluded, unanimously in all three cases, that there had been a violation of Article 5 § 3.   The Court awarded the applicants the overall amounts set out below, expressed in euros. (The judgments are available only in French.)     Non-pecuniary damage Costs and expenses   Stemplewski v. Poland   1,000   - Żak v. Poland 2,000 - Zych v. Poland 2,000 550     Akay v. Turkey (no. 58539/00)   Violation of Article 6 § 1 (length) The applicant, Uğur Akay, is a Turkish national who was born in 1952 and lives in Zonguldak (Turkey). At the relevant time he was President of Diyarbakır Assize Court.   On 28 October 1992 the applicant was apprehended by police officers carrying out a road traffic patrol. The applicant disagreed with the police officers’ intention to issue him with a ticket for driving under the influence of alcohol without carrying out a breath test. The police officers then allegedly spoke to him in familiar language and insulted him. At the close of the dispute the police officers decided not to book the applicant.   In June 1999 the two police officers were convicted of misuse of their authority and abuse and were both ordered to pay a fine and to pay the applicant damages of 50,000,000 Turkish liras (TRL) (about EUR 116). The applicant appealed on points of law. On 27 March 2001 the Court of Cassation declared the offences time-barred.   The applicant complained that the police officers carrying out the roadside check had insulted him. He relied, in particular, on Article 3 (prohibition of inhuman or degrading treatment). He further complained under Article 6 (right to a fair hearing within a reasonable time) of the length of the criminal proceedings which he had joined as a civil party.   The Court considered that the treatment inflicted on the applicant during the traffic check had not attained the minimum level of gravity required to constitute inhuman or degrading treatment within the meaning of Article 3, and declared the complaint under that Article inadmissible on the ground that it was manifestly unfounded. Further, the Court noted that the disputed proceedings had lasted more than seven years and five months, for two levels of jurisdiction. Having regard to the circumstances of the case, it considered that such a period was excessive and failed to satisfy the “reasonable time” requirement. The Court therefore concluded, unanimously, that there had been a violation of Article 6 § 1.   The Court held that it was unnecessary to make any award in respect of just satisfaction as the applicant had submitted no claim. (The judgment is available only in French.)   Baba v. Turkey (no. 35075/97)   Violation of Article 1 of Protocol No. 1   The applicant, Murat Baba, is a Turkish national who was born in 1935 and lives in Ordu (Turkey). He is a carpenter by trade.   As he had received only part-payment of the fee due to him for work carried out on behalf of Kumru Town Hall, the applicant brought proceedings against the municipality. On 8 June 1995 Kumru District Court found in his favour and awarded compensation. Despite the efforts undertaken by the applicant, he has received no payment to date.     Relying on Article 1 of Protocol No. 1 (protection of property), the applicant complained that his right to the peaceful enjoyment of his possessions was infringed on account of the failure to enforce the judicial decision in his favour.   The Court noted that, by failing to enforce the final decision, the Turkish authorities had deprived the applicant of the enjoyment of his right of property, without providing any justification for that interference. It therefore concluded unanimously that there had been a violation of Article 1 of Protocol No. 1 and awarded the applicant EUR 1,175 in respect of pecuniary damage and EUR 2,000 for costs and expenses, less the EUR 630 already received from the Council of Europe as legal aid. (The judgment is available only in French.)     No violation of Article 2 (death of applicants’ relative) Violation of Article 2 (investigation)   No violation of Article 5 Kaya and Others v. Turkey (no. 4451/02)   Violation of Article 13 The applicants are nine Turkish nationals, Gülistan Kaya, Efendi Kaya, Aylen Kaya,   Mehmet Kaya, Mustafa Kaya, Hakkı Kaya, Çiçek Kaya, Vesile Kaya and Savaş Kaya who were born in 1950, 1966, 1972, 1981, 1982, 1984, 1986, 1990 and 1993 respectively and live in Diyarbakır. Gülistan Kaya is the wife and the remainder of the applicants are the children of Hakkı Kaya, who has been missing since 16 November 1996.   On 16 November 1996 at about 3 p.m. Hakkı Kaya and two friends were walking in the city centre in Diyarbakır. A car approached them and three men dressed in civilian clothes and carrying walkie-talkies introduced themselves as police officers and carried out an identity check. They then forced Mr Kaya into the vehicle, stating that he had to go to the police station to make a statement.   On 28 November 1996 Efendi Kaya requested the authorities to carry out an investigation into his father’s disappearance. Hakkı Kaya’s brother contacted the authorities to request information about their relative’s whereabouts. They were informed that Hakkı Kaya was not in police custody.   On 11 March 2004 the Ülkede Özgür Gündem newspaper published an interview with Mr Abdulkadir Aygan, a former member of the PKK and allegedly a member of JITEM (the Gendarme Intelligence Service), who stated that Hakkı Kaya had been killed by JITEM and described where the body had been buried. The applicants submitted a copy of the newspaper article to the Public Prosecutor for further investigation. The Public Prosecutor however was unable to locate Mr Aygan.   The applicants alleged that their relative was abducted and killed by State agents and that the Turkish authorities failed to conduct an adequate and effective investigation into his disappearance. They relied on Articles 2 (right to life), 5 (right to liberty and security), 6 § 1 (right to a fair hearing) and 13 (right to an effective remedy).   The Court considered that there was insufficient evidence to conclude that Hakkı Kaya was, beyond reasonable doubt, abducted and killed by State agents, as alleged by the applicants. Accordingly, the Court held unanimously that there had been no violation of Article 2 in respect of the disappearance of the applicants’ relative.   The Court noted that almost ten years had elapsed since the start of the investigation into Hakkı Kaya’s disappearance and no tangible results had been produced. Furthermore, the Court found that there were important shortcomings in the conduct of that investigation.   It observed that, despite the seriousness of the applications’ allegations, the authorities responded by simply denying that Hakkı Kaya had ever been taken into custody. It also noted that the investigations carried out by the public prosecutors’ offices did not go beyond checking the police custody and customs’ records to verify whether Hakkı Kaya had been detained or had left Turkey. Little attempt was made to identify any possible witnesses. In particular the authorities failed to locate Mr Abdülkadir Aygan, who was a very important witness for the pending investigation, his evidence could therefore not be taken.   The Court concluded that the Turkish authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the disappearance of Hakkı Kaya and held unanimously that there had been a violation of Article 2 and Article 13.   The Court also held unanimously that there had been no violation of Article 5 and that it was unnecessary to consider the applicants’ complaints under Article 6 § 1. No just satisfaction was awarded.   (The judgment is available only in English.)     Violation of Article 6 § 1 (fairness) Maçin v. Turkey (No. 2) (no. 38282/02)   No violation of Article 6 § 1 (length) The applicant, Emrullah Maçin, is a Turkish national who was born in 1974. He is currently detained in Diyarbakır Prison (Turkey).   On 29 September 1998 the applicant was arrested and taken into police custody for belonging to the PKK (Workers’ Party of Kurdistan). On 20 November 2001 a State security court found the applicant guilty of carrying out separatist activities and sentenced him to the death penalty, commuted to life imprisonment. The Court of Cassation upheld this sentence on 27   May 2002.   Relying on Article 6 § 1 (right to a fair trial), the applicant complained of the length and unfairness of the proceedings against him.   The Court noted that although the composition of the State security court had initially included a military judge, he had been replaced by a civilian judge during the proceedings. The verdict had been pronounced by a court composed only of civilian judges, who had examined all the facts and questions of law. Accordingly, the Court concluded, unanimously, that there had been no violation of Article 6 § 1 with regard to the complaint alleging a lack of independence and impartiality.     Further, the Court referred to its finding in previous cases that the non-communication of Principal State Counsel’s opinion, in view of the nature of his submissions and of the defendant’s inability to make written observations in reply, entailed a breach of Article 6 § 1. Seeing no reason to depart from that conclusion in the applicant’s case, the Court held unanimously that there had been a violation of Article 6 § 1.   Finally, the Court noted that the disputed proceedings had lasted four years for four levels of jurisdiction and two decisions. Having regard to the circumstances of the case, it considered that such a period was not excessive. The Court therefore concluded, unanimously, that there had not been a violation of Article 6 § 1 in that connection.   The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR 1,500 for costs and expenses. (The judgment is available only in French.)   Taner Kılıç v. Turkey (no. 70845/01)   Violation of Article 8 The applicant, Taner Kılıç, is a Turkish national who was born in 1969 and lives in İzmir. He is a lawyer and a board member of the İzmir branch of the Human Rights Association for Oppressed People (Mazlumder).   In June 1999 Ankara State Security Court issued a warrant authorising the search of the headquarters and branches of the Mazlumder, in order to collect evidence concerning certain acts of the association, allegedly carried out against the “integrity of the country and the secular regime”. Maintaining that the situation was urgent, the Public Prosecutor extended the scope of the search warrant and ordered the search of the homes and offices of the association’s General Director and board members. Subsequently, when communicating the search orders of the State Security Court and the Public Prosecutor to the governors, the Under-Secretary of State of the Ministry of the Interior specified that not only the homes and offices of the General Director and board members should be searched, but also the premises of all branch board members.   During the search of the applicant’s home the police confiscated two videotapes and photocopied various documents taken from his office.   The applicant complained about the search and the seizure of his property. He relied on Articles 8 (right to respect for private and family life and correspondence), 13 (right to an effective remedy) and Article 1 of Protocol No. 1 (protection of property).   The Court found that the search warrant initially issued by the court and extended by the Public Prosecutor was interpreted by the Under-Secretary of State of the Ministry of the Interior in too broad a manner when including the home and office of the applicant, who was a board member of the İzmir branch. It observed that the search and seizures were extensive and that privileged professional materials were taken without special authorisation.   The Court concluded that the search of the applicant’s premises and the seizure of his property and documents were not implemented in accordance with the law and held unanimously that there had been a violation of Article 8.   In view of that finding the Court did not find it necessary to examine separately the applicant’s complaints under Article 13 or Article 1 of Protocol No. 1. The applicant was awarded EUR 2,000 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in English.)   Martin v. United Kingdom (no. 40426/98)   Violation of Article 6 § 1 (fairness) The applicant, Alan Martin, is a United Kingdom national who was born in 1976 and, at the time of the introduction of his application, was serving a sentence of life imprisonment in England.   In February 1994 the applicant was living with his family in Germany, where his father was an Army Corporal serving in the British Army. In February 1994 the applicant was charged with the murder of a young civilian woman who had been working for the army and whose body had been found in woods near to the military base. As a family member residing with a member of the Armed Forces, the applicant was subject to military law.   The court-martial board which tried his case was composed of a President and six ordinary members all of whom were subordinate in rank to the Convening Officer and the President. Two members were civilian civil servants, who came from the United Kingdom solely for the purpose of the trial, and were placed under the Convening Officer’s command while in Germany.   The applicant’s representative submitted that the trial of a young civilian by court-martial was inherently unfair and oppressive and an abuse of process. His submissions were considered by the Vice-Judge Advocate General and were rejected. The trial ended with the applicant’s conviction in May 1995.   The applicant claimed that, in all the circumstances of the case, he had been subjected to degrading treatment and that his trial by court-martial had been unfair. He relied on Articles 3 (prohibition of inhuman or degrading treatment) and 6 § 1 (right to a fair trial).   The Court found that the trial of a civilian by a military court would, other than in exceptional circumstances, always be contrary to Article 6 § 1. It further found that in the applicant’s case that the court-martial tribunal lacked the required independence and impartiality required to comply the guarantees provided in Article 6 § 1. It noted in particular the lack of independence of the members of the court-martial from the Convening Officer who were all either subordinate in rank to him or under his ultimate command. Referring to the role played by the Judge Advocate who was a senior judge appointed by the Lord Chancellor, the Court found that his influence and involvement in the tribunal proceedings was negligible and was not sufficient to guarantee the independence and impartiality of the applicant’s court-martial.   The Court therefore considered the applicant’s concerns about the independence and impartiality of his tribunal were objectively justified and held, unanimously, that there had been a violation of Article 6 § 1. The applicant was awarded EUR 8,370 for costs and expenses. The remainder of his application was declared inadmissible. (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 1 of Protocol No. 1 Açıkgöz v. Turkey (no. 76855/01) Akkan and Erkızılkaya v. Turkey (no. 48055/99) Kürkçü and Others v. Turkey (no. 7142/02) Terece v. Turkey (no. 41054/98) Üstücan and Others v. Turkey (no. 11914/03) In these five Turkish cases, the applicants complained under Article 1 of Protocol No. 1 (protection of property) of delays in paying them additional compensation for expropriation. Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), the applicants in Açıkgöz and Kürkçü and Others also complained of the length of the proceedings in question.   In each of these cases the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1. It considered that it was unnecessary to examine separately the complaint under Article 6 made by the applicants in Açıkgöz and Kürkçü and Others. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants and awarded them the overall sums set out below, expressed in euros, in respect of pecuniary damage and costs and expenses. (The judgments are available only in French.)     Pecuniary damage Costs and expenses   Açıkgöz v. Turkey   2,754   1,000 Akkan and Erkızılkaya v. Turkey 88,000 - Kürkçü and Others v. Turkey 23,254 1,000 Terece v. Turkey 173,000 1,500 Üstücan and Others v. Turkey 16,935 500     Yüksektepe v. Turkey (no. 62227/00)   Violation of Article 6 § 1 (fairness) The applicant, Yılmaz Yüksektepe, is a Turkish national who was born in 1958 and lives in Germany.   In November 1995 he was arrested and taken into custody in the context of an operation against the Islami Hareket Örgütü (the Islamic Movement Organisation), an illegal organisation in Turkey. He was released in September 1996. On 13 February 1998 Istanbul State Security Court convicted him of aiding and abetting an illegal organisation and sentenced him to five years’ imprisonment.     The applicant complained that he was illegally detained and tortured in police custody. He also complained that he was denied a fair hearing on account of the presence of a military judge sitting on the bench of Istanbul State Security Court, which tried and convicted him. He further submitted that he was convicted on the basis of false statements taken under duress and documents drafted by the police. He alleged that the charges brought against him were motivated by his religious beliefs and complains about the search conducted in his house.   He relied on Articles 3 (prohibition of torture), 5 (right to liberty and security), 6 § 1 (right to a fair trial), 7 (no punishment without law) 8 (right to respect for private and family life and correspondence), 9 (freedom of thought, conscience and religion) and 14 (prohibition of discrimination).   As in a number of similar cases, the Court found that the applicant’s concerns regarding the independence and impartiality of the State Security Court could be regarded as objectively justified. It therefore held unanimously, that there had been a violation of Article 6 § 1.     It further held that it was unnecessary to consider separately the applicants other complaints under that Article and declared the remainder of the application inadmissible.   The Court held that the finding of a violation constituted in itself sufficient compensation for any non-pecuniary damage suffered by the applicant. (The judgment is available only in English.)     Length-of-proceedings cases   In the following cases the applicants complained of the excessive length of civil or administrative proceedings. The Central Mediterranean Development Corporation Limited also complained under Article 13 that it had had no effective remedy concerning its length-of-proceedings complaint.     Violation of Article 6 § 1 (length)   No violation of Article 13 Central Mediterranean Development Corporation Limited v. Malta (no. 35829/03)     Violation of Article 6 § 1 (length) Atut Sp.z o.o. v. Poland (no. 71151/01) Baranowska v. Poland (no. 72994/01) Romaniak v. Poland (no. 53284/99) Orzechowski v. Poland (no. 77795/01) Sokołowski v. Poland (no. 15337/02) Stevens v. Poland (no. 13568/02)   ***   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. [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.