CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 19 octobre 2006

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[1]   Length of proceedings and repetitive cases [2] are summarised at the end of the press release.     Tomašić v. Croatia (no. 21753/02)   Violation of Article 6 § 1 (fairness) The applicant, Nenad Tomašić, is a Croatian national who was born in 1950 and lives in Bjelovar (Croatia).   On 26 February 1992 the applicant’s summer house was blown up by unknown perpetrators. The proceedings for damages brought by the applicant and his wife against the State, were stayed on 23 February 1996, under the 1996 Amendment to the Civil Obligations Act.   Following the applicant’s constitutional complaint, on 7 July 2004 the Constitutional Court found violations of the applicant’s constitutional rights to a hearing within a reasonable time and of access to a court. It ordered the first-instance court to give a decision in the applicant’s case within a year and awarded him 4,400 Croatian kunas (approximately 622 euros (EUR)) in compensation.   The applicant complained under Articles 6 § 1 (access to court) and 13 (right to an effective remedy) of the European Convention on Human Rights that the enactment of the 1996 Amendment violated his right of access to a court. He argued, in particular that the amount of compensation was insufficient and significantly lower than amounts awarded by the European Court of Human Rights in similar cases.   The Court found that the redress afforded to the applicant could not be regarded as adequate and sufficient and that accordingly, the applicant could still claim to be a victim of a breach of his right of access to a court. Accordingly, the Court held unanimously that there had been a violation of Article 6 § 1 of the Convention, and that there was no need to examine the complaint under Article 13. It awarded the applicant EUR 1,200 euros for non-pecuniary damage and EUR 60 for costs and expenses. (The judgment is available only in English.)   Majadallah v. Italy (no. 62094/00)   Violation of Article 6 §§ 1 and 3 The applicant, Mohamed Majadallah, is a Moroccan national who was born in 1954 and lives in Florence (Italy).   The applicant was prosecuted for aggravated indecent assault, committing obscene acts in a public place, physical injury and drunkenness. During the criminal proceedings the complainants did not attend the hearing but the statements they had given to the police were read out and used in accordance with Article 512 of the Code of Criminal Procedure in order to ascertain the applicant’s guilt.   On 22 January 1998 the applicant was found guilty as charged and was sentenced to prison for one year and four months. Before both the Court of Appeal and the Court of Cassation he argued that he had been unable to examine the complainants whose statements had been read out at first instance. His appeals were both dismissed.   The applicant alleged that the criminal proceedings against him had been unfair on account of his inability to examine or have examined witnesses against him. He relied on Article 6 §§ 1 and 3 (right to a fair trial).   The Court noted that the defence had not been given an opportunity to put questions to those who had made the accusations against the applicant. It considered that the Italian courts had based the applicant’s conviction, in particular on the charges of indecent assault, physical injury and committing obscene acts in a public place, solely on the statements made to the police by the two complainants. Observing that the applicant had not had a fair trial as a result, the Court held unanimously that there had been a violation of Article 6 §§ 1 and 3 and awarded the applicant 7,300 euros (EUR) for costs and expenses. (The judgment is available only in French.)   Violation of Article 6 § 1 (fairness) Matache and Others v. Romania (no. 38113/02) Violation of Article 1 of Protocol No. 1 The applicants, Constantin   Matache, Elena Matache and Zenovia Sprîncean, are siblings. They are Romanian nationals who were born in 1934, 1936 and 1940 respectively and live in Ploieşti (Romania).   In a judgment of 23 May 2002, which subsequently became final, Brăila Court of First Instance awarded compensation to the applicants on account of the nationalisation in 1949 of a mill and adjacent land which had belonged to their parents. In spite of the applicants’ efforts, that judgment has still not been enforced.   The applicants alleged that the failure to enforce the judgment of 23 May 2002 had infringed their right of access to a court and their right to the peaceful enjoyment of their possessions. They relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   The Court considered in particular that a disproportionate burden had been placed on the applicants since, more than four years after the amount of compensation had been set, they had still not received payment and had no guarantee that they would receive the sums in question in the immediate future. It therefore held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1. The Court considered that the question of just satisfaction was not ready for decision and reserved it accordingly. It awarded the applicants EUR 100 for costs and expenses. (The judgment is available only in French.)   Abdullah Altun v. Turkey (no. 66354/01)   Violation of Article 6 § 1 (length)   Violation of Article 6 § 1 (fairness)   Hikmedin Yıldız v. Turkey (no. 69124/01)   Violation of Article 6 § 1 (length) The applicants, Abdullah Altun and Hikmedin Yıldız, are Turkish nationals who were born in 1972 and 1957 respectively and live in Diyarbakır.   In January 1993 Mr Yıldız was taken into custody on suspicion that he was involved in the PKK (proscribed as a terrorist organisation under Turkish law). The proceedings against him were terminated in April 2000 as being out of time. Mr Altun was taken into custody on the same charge in March 1995. He was found guilty and given a life sentence in a judgment which was upheld in the Court of Cassation in February 2000.   Both applicants complain of the length of the criminal proceeding against them. Mr Altun also claims that he did not receive a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench of Diyarbakır State Security Court, which tried and convicted him. They relied on Article 6 § 1 (right to a fair trial within a reasonable time).   As in a number of similar cases, the Court found that Mr Altun’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.     The Court noted that the proceedings in question had lasted approximately four years and eleven months in Mr Altun’s case and seven years for Mr Yldiz. Having regard to the circumstances of the cases, it considered that such a length of time was excessive and failed to satisfy the “reasonable time” requirement. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 in both cases.   The Court awarded Mr Altun EUR 3,000 and Mr Yıldız EUR 3,500 for non-pecuniary damage and EUR 1,000 each for costs and expenses. (The judgments are available only in English.)     Violation of Article 6 § 1 (length)   Violation of Article 6 § 1 (fairness) Kök v. Turkey (no. 1855/02)   No violation of Article 2 of Protocol No. 1 The applicant, Mualla Kök, is a Turkish national who was born in 1962 and lives in Istanbul.   In 1995 the applicant, a medical doctor, brought administrative proceedings seeking to obtain recognition by the Turkish Ministry of Health of a period of specialised medical training she had undergone in Bulgaria. When her request was refused, she appealed to the Supreme Administrative Court.   In considering the appeal, the Supreme Administrative Court requested details from the Ministry of Health regarding the legislation governing persons in a similar situation to the applicant and the administrative acts adopted on the subject. On 16 March 2001 the Ministry sent a letter, which was not forwarded to the applicant, analysing the applicant’s legal position and stressing that she did not satisfy the requirements laid down in the matter. The Supreme Administrative Court dismissed the applicant’s appeal.   The applicant complained of the length and unfairness of the proceedings to which she had been a party. She relied on Article 6 § 1 (right to a fair hearing) and Article 2 of Protocol   No.   1 (right to education).   The Court observed that the proceedings at issue had lasted almost six years for three levels of jurisdiction, following preliminary administrative proceedings. Having regard to the circumstances of the case, it considered that such a length of time was excessive and failed to satisfy the “reasonable-time” requirement. Accordingly, it held unanimously that there had been a violation of Article 6 § 1.   Further, observance of the right to a fair hearing would have meant allowing the applicant to submit comments on the information provided by the Health Ministry on 16   March 2001. No such opportunity had been afforded to her. Accordingly, the Court held unanimously that there had been a violation of Article 6 § 1 in that regard.   Lastly, the Court could not speculate as to what the outcome of the proceedings might have been had they complied with the requirements of Article 6 § 1. Consequently, the refusal of the authorities to recognise the applicant’s period of specialised training in Bulgaria did not amount to a restriction of her right to education. The Court therefore held that there had not been a violation of Article 2 of Protocol No. 1.   By way of just satisfaction, the Court awarded the applicant EUR 3,000 in respect of non ‑ pecuniary damage. (The judgment is available only in French.)     No violation of Article 2 (death)   Violation of Article 2 (investigation)   No violation of Article 3 (inhuman treatment) Selim Yıldırım and Others v. Turkey (no. 56154/00)   Violation of Article 13 The applicants, Selim Yıldırım, Hasibe Yıldırım, Leyla Yıldırım, Rıdvan Yıldırım, Gülcan Yıldırım, Berivan Yıldırım and Şermin Yıldırım, are Turkish nationals who were born in 1928, 1955, 1980, 1982, 1984, 1987 and 1994 respectively. The first applicant lives in Diyarbakır and the remainder of the applicants live in Istanbul. The first applicant is the father, the second applicant is the wife and the remainder of the applicants are the children of Adnan Yıldırım, who was killed on 3 June 1994.   On 3 June 1994 at about 4.30 a.m. while Adnan Yıldırım was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul with two friends, seven or eight people wearing bullet-proof vests and carrying firearms approached them. They introduced themselves as police officers and forced the three men into three cars.   The applicants were informed of the incident on the same day. They immediately contacted the Bakırköy public prosecutor and the Yeşilköy police headquarters to find out more about the kidnapping. They were informed that the three persons had not been taken into custody.   On the same day at about 9 p.m. Yığılca gendarmerie station was informed of the sighting of three bodies. At about 9.15 p.m. the gendarmerie arrived at the scene. No documents or other property were found on the bodies which might establish their identities. The corpses were taken to the Health Centre in Yığılca for further examination.   On 4 June 1994 a post mortem examination of Adnan Yıldırım’s body was carried out by two doctors in the presence of the Yığılca public prosecutor. The investigation revealed that he had been shot at close range and died of a cerebral haemorrhage.   An investigation was undertaken and murder charges brought against Mr Yildirim’s suspected killer, who was acquitted for lack of evidence on 18 November 1999.   The applicants alleged in particular that their relative, Adnan Yıldırım, had been killed following his abduction by undercover State agents and that the Turkish authorities failed to carry out an effective and adequate investigation into his death. They relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 6 § 1 (right to a fair hearing within a reasonable time), 13 (right to an effective remedy) and   14 (prohibition of discrimination).   The Court noted that the applicants relied on the Susurluk Report, which stated that it had been a State strategy to kill wealthy Kurdish people who supported the PKK.   However, the Court observed that there was no indication in the case-file that Mr Yildirim had been threatened by anyone, or that he had had reason to believe that his life was at risk prior to his death. It further noted that there were no eyewitnesses to the killing.   The Court recalled that the Susurluk Report could not be relied on to establish to the required standard of proof that State officials were implicated in any particular incident. The Court stated that the actual circumstances in which Mr Yildirim had died remained a matter of speculation and assumption. Accordingly, there was insufficient evidence on which to conclude that he was, beyond reasonable doubt, killed by or with the connivance of State agents in the circumstances alleged by the applicants. The Court held unanimously that there had been no violation of Article 2.   The Court noted striking omissions in the conduct of the investigation into the kidnapping and subsequent death of the applicants’ relative. In particular it noted that the authorities did not make any serious attempt to investigate the possible involvement of State agents in the killing; a link between the killing of Mr Yildirim and the special team mentioned in the Susurluk Report was ignored; and that there was no real co-ordination between the different public prosecutors dealing with the case.   Considering that the national authorities had failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicants’ relative, the Court concluded unanimously that there has been a violation of Article 2.   As it had not been established that any State agent was implicated, directly or indirectly, in the killing of the applicants’ relative, the Court found no violation of Article 3.   The Court observed that the Turkish authorities had an obligation to carry out an effective investigation into the circumstances surrounding the killing of the applicants’ relative. However, no effective criminal investigation could be considered to have been conducted. The Court therefore found unanimously that there had been a violation of Article 13, because the applicants had been denied an effective remedy in respect of the death of their relative.   In view of its finding of violations of Articles 2 and 13 the Court did not consider it necessary to examine the applicants’ complaints under Article 14.   The Court awarded the applicants, jointly, EUR 20,000 for non-pecuniary damage and EUR 6,000 for costs and expenses. (The judgment is available only in English.)   M. A. T. v. Turkey (no. 63964/00)   No violation of Article 6 § 1 (length) The applicant, M.A.T., is a Turkish national who was born in 1960 and lives in Istanbul.   In September 1998 the applicant was convicted of being an accessory to bribery and sentenced to a term of imprisonment. That judgment was upheld by the Court of Cassation in March 2000.   The applicant complains about the length of the criminal proceedings against him. He relies on Article 6 § 1 (right to a fair trial within a reasonable time).   The Court finds nothing in the case file that suggests that the judicial authorities failed to proceed with the requisite diligence or that there was any time of inactivity attributable to them and that most of the delays were attributable to the conduct of the applicant. Accordingly, the Court held that there had been no violation of Article 6 § 1. (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:   Ceglia v. Italy (no. 21457/04)   Violation of Article 1 of Protocol No. 1     Violation of Article 1 of Protocol No. 1 Gautieri and Others v. Italy   Violation of Article 6 § 1 (length) In these two cases the applicants all owned land that was occupied by the authorities with a view to expropriation. Construction was begun on the land. Since there had been no expropriation order or compensation, the applicants brought proceedings claiming damages for unlawful occupation of their land.   The applicants alleged that the occupation of their land had interfered with their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 (protection of property). In the case of Gautieri and Others , the applicants further complained in particular of the length of the proceedings in question.   The Court considered that the loss of all ability to dispose of the land in question, combined with the impossibility of obtaining a remedy of the situation, amounted to de facto expropriation which was incompatible with the applicants’ right to the peaceful enjoyment of their possessions. It therefore held unanimously in both cases that there had been a violation of Article 1 of Protocol No. 1.   In Gautieri and Others , the Court observed that the proceedings at issue had lasted over 17 years for three levels of jurisdiction. Having regard to the circumstances of the case, it considered that such a length of time was excessive and failed to meet the “reasonable-time” requirement. Accordingly, it held unanimously that there had been a violation of Article   6   §   1.   In both these cases the Court considered that the question of the application of Article 41 (just satisfaction) was not ready for decision and reserved it accordingly. In Gautieri and Others , it awarded the applicants EUR 22,000 for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgments are available only in French.)     Violation of Article 6 § 1 (fairness) Raicu v. Romania (no. 28104/03)   Violation of Article 1 of Protocol No. 1 The applicant, Alexandrina Raicu, is a Romanian national who was born in 1934 and lives in Bucharest.   In a final judgment of 12 March 2001, Bucharest Court of Appeal recognised the validity of the contract of sale under which the applicant had acquired a flat in Bucharest that had been seized by the State and in respect of which an action for recovery of possession was pending. That judgment was quashed by the Supreme Court of Justice, ruling on an application to set aside lodged by the Procurator-General.   The applicant argued that the reversal of the final judgment in her favour had breached the principle of legal certainty. She alleged a violation of Article 6 § 1 (right to a fair hearing) and of Article 1 of Protocol No. 1 (protection of property).   The Court took the view that the quashing by the Supreme Court of Justice of the final judgment of 12 March 2001 had breached the principle of legal certainty, infringing the applicant’s right to a fair hearing. It therefore held unanimously that there had been a violation of Article 6 § 1. It also found that the interference with the applicant’s right to the peaceful enjoyment of her possessions had upset, to her detriment, the fair balance that had to be struck between the protection of property and the requirements of the general interest. The Court therefore held unanimously that there had been a violation of Article 1 of Protocol   No.   1.   By way of just satisfaction, the Court awarded the applicant EUR 35,000 for pecuniary damage, EUR 2,000 for non-pecuniary damage and EUR 100 for costs and expenses. (The judgment is available only in French.)   Irina Fedotova v. Russia (no. 1752/02)   Violation of Article 6 § 1 (fairness) The applicant, Irina Yuryevna Fedotova, is a Russian national who was born in 1966 and lives in Penza (Russia).   She complained that final judgments in her favour were quashed and that she was unable to effectively participate at the supervisory-review hearing. She relies on Article 6 § 1 (access to a court).   The Court noted that final and binding judgments in the applicant’s favour were set aside by a higher court in supervisory review proceedings following an application by a public prosecutor whose power to make such applications was not subject to any time-limit, so that judgments were liable to challenge indefinitely. As a result, the applicant had had to endure legal uncertainty for a long period after the final judgment was quashed. There had therefore been a breach of the principle of legal certainty and of the right of access to a court in the applicant’s case and the Court held unanimously that there had been a violation of Article   6   §   1.   In view of that finding, the Court did not consider it necessary to consider the allegation of procedural unfairness in the supervisory-review proceedings. The applicant was awarded EUR 2,000 for non-pecuniary damage and EUR 10 for costs and expenses. (The judgment is available only in English.)     Violation of Article 6 § 1 (length)   Violation of Article 6 § 1 (fairness) Kesyan v. Russia (no. 36496/02)   Violation of Article 1 of Protocol No. 1 The applicant, Robert Ambartsumovich Kesyan, is a Russian national who was born in 1952 and lives in Sochi (Russia).   The applicant complains about the length of civil proceedings which he initiated and about the prolonged non-enforcement of two judgments given in his favour. He relied on Article 6 § 1 (right to a hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property).   The Court noted that the applicant’s tort proceedings had lasted seven years and seven months. Having regard to the circumstances of the case, it considered that such a length of time was excessive and failed to satisfy the “reasonable time” requirement. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1.   Concerning the two unenforced judgments, the Court noted that they had not been enforced for a number of years, a situation for which the Government had not provided any plausible justification. The Court therefore held, unanimously, therefore, that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1.     The Court held unanimously that there had been a violation of Article 6 § 1 on account of the unreasonable length of the proceedings and that there had been a violation of the same article and Article 1 of Protocol No. 1 on account of the non-enforcement of the judgment in the applicant’s favour. The Court held that the respondent State should secure the enforcement of the awards made by the domestic court in the applicant’s favour and awarded Mr   Kesyan EUR 6,000 in respect of non-pecuniary damage. (The judgement is available only in English.)     Violation of Article 1 of Protocol No. 1 Börekçioğulları(Çokmez) and Others v. Turkey (no. 58650/00) The applicants are Suna Börekçioğulları, Nazmiye Hançerli, Ahmet Göksenin Hançerli, Ayşe Göknil Hançerli, Şeref Hakan Hançerli and Serpil Tetik born in 1935, 1957, 1980, 1983, 1967 and 1958 respectively. They are Turkish nationals and live in Ankara.   In 1990 they inherited a plot of land in Ankara which was being used by the Ministry of Defence as a military base.   In March 1991 the applicants brought an action for compensation. They submitted that the Ministry of Defence was in actual possession of the land illegally since they had not conducted expropriation proceedings or compensated them for the damage resulting from the interference. In April 1996 Ankara Civil Court of General Jurisdiction held that the Ministry of Defence had been in actual possession of the land since 1942 and rejected the case for being introduced out of the statutory time-limit pursuant to Article 38 of the Law no.   2942. The land was subsequently registered in the land registry in favour of the Treasury.   On 10 April 2003 the Constitutional Court annulled Article   38 of Law   no.   2942, holding that it was against the relevant Articles of the Constitution and in violation of the right to property guaranteed under the Convention.   The applicants complained that they had been deprived of their land without being paid compensation for the loss. They relied on Article 1 of Protocol No. 1 (protection of property).   The Court considered that the application of Article 38 of the Law no. 2942, by the domestic authorities to the applicants' case, had the consequence of depriving them of the possibility to obtain damages for the annulment of their title. In the absence of adequate compensation in exchange for their property, the interference in question, although prescribed by law, did not strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The Court consequently held unanimously that there had been a violation of Article 1 of Protocol No. 1 and awarded the applicants EUR 373,000 in respect of pecuniary damage and EUR 4,000 for costs and expenses. (The judgment is available only in English.)   Sağır v. Turkey (no. 37562/02)   Violation of Article 6 § 1 (fairness) The applicant, Nurullah Sağir, is a Turkish national who was born in 1955 and lives in İzmir.   In 2001 İzmir State Security Court found him guilty of being the leader in a criminal association and gave him a prison sentence of three years and four months. He appealed on points of law but was unsuccessful.   Relying on Article 6 § 1 (right to a fair trial), the applicant complained that he had not been provided with the submissions of Principal State Counsel at the Court of Cassation.   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 present case, the Court held unanimously that there had been a violation of Article 6 § 1. The Court considered that the finding of a violation constituted 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.)     Length-of-proceedings cases   In the following cases the applicants complained of the excessive length of civil proceedings.     Violation of Article 6 § 1 (length) Romanenko and Romanenko v. Russia (no. 19457/02) Arsov v. The former Yugoslav Republic of Macedonia (no. 44208/02) Mukhin v. Ukraine (no. 39404/02)   ***   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.