CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 décembre 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.     Bajrami v. Albania (application no 35853/04)   Violation of Article 8 The applicant, Agim Bajrami, is an ethnic Albanian from Kosovo who was born in 1964 and lives in Lipjan, Kosovo (Serbia).   In 1998 the applicant and his wife separated and his wife moved out with their daughter (born on 20 January 1997) to live with her parents. The applicant only managed to see his daughter once after the separation as his ex-wife and her parents refused to give him access to her.   In June 2003 he brought divorce proceedings. At the same time he requested the Vlora Police District to block his daughter’s passport in view of the fact that his wife was planning to take her to Greece without his consent. Despite that request, in January 2004 the applicant’s wife managed to take her daughter to Greece.   On 4 February 2004 Vlora District Court granted the divorce and gave custody of the child to the applicant.   The judgment, however, was never enforced.   The applicant relied on Article 8 (right to respect for private and family life) of the European Convention on Human Rights and Article 6 § 1 (right to a fair hearing) of the Convention.   The Court noted that the custody judgment of 4 February 2004 had remained unenforced for approximately two years for which no blame could be attributed to the applicant, who regularly took steps to secure the return of his daughter.   The Court observed that, under Albanian law, there was no specific remedy to prevent or punish cases of abduction of children from the territory of Albania. In particular, it noted that Albania was not a State Party to the Hague Convention and it had not yet implemented the UN Convention on the Rights of the Child of 20 November 1989. In that respect, the Court recalled that the European Convention on Human Rights required States to take all necessary measures to secure the reunion of parents with their children in accordance with a final judgment of a domestic court.   However, irrespective of the non-ratification by Albania of relevant international instruments in that area, the Court found that the Albanian legal system, as it stood, did not provide any alternative framework affording the applicant the practical and effective protection that was required by the State’s positive obligation enshrined in Article 8. It therefore held unanimously that there had been a violation of Article 8.   It also held that there was no need to examine separately the complaint under Article 6 § 1 and awarded the applicant 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 for costs and expenses. (The judgment is available only in English.)   Depa v. Poland (no. 62324/00)   Violation of Article 5 § 3 The applicant, Wojciech Depa, is a Polish national who was born in 1975 and lives in Kraków (Poland).   He was arrested on 14 January 1998 on suspicion of having committed several criminal offences including attempted murder.   Between 27 March and 11 August 1998 he served a prison sentence ordered in another set of criminal proceedings. After that his detention was prolonged several times until on 10 January 2000 he was convicted as charged and sentenced to 15 years’ imprisonment. Subsequently, on 13 April 2000, the appeal court quashed the judgment and remitted the case. The applicant’s detention on remand lasted until 6 February 2002 when the trial court again convicted him.   The applicant complained, in particular, about the length of his detention on remand which lasted three years and five months. He relied on Article 5 §§ 3 and 4 (right to liberty and security).   The Court held unanimously that there had been a violation of Article 5 § 3, and declared the remainder of the application inadmissible. As the applicant had not submitted any claim for just satisfaction, it held that it was unnecessary to make an award in that connection. (The judgment is available only in English.)   Dombek v. Poland (no. 75107/01)   Violation of Article 5 §§ 1 and 3 The applicant, Jacek Dombek, is a Polish national who was born in 1965 and lives in Gdańsk (Poland).   In July 1996 and October 1997 the applicant was arrested on suspicion of being involved in organised crime activities. Several orders were made renewing his detention. On 27 August 1999 Bydgoszcz Regional Court prolonged his detention until 17 September 1999. At the same time, the court applied to the Supreme Court asking for his detention to be extended beyond the maximum term of two years permitted under Polish law. On 16 September 1999 the Supreme Court informed the detention centre by fax that he should be detained until the court’s next session. On 1 October 1999 the Supreme Court further prolonged his detention. The applicant was also detained on remand in a second set of criminal proceedings on 30 January 2001 and on 28 April 2005 he was convicted of three counts of homicide and robbery and was sentenced to 25 years imprisonment.   Between 15 September and 15 October 2001 he served a prison sentence ordered in another set of criminal proceedings.   The applicant complained that his detention between 17 September and 1 October 1999 lacked any legal basis. He further complained about the length of his detention on remand (nearly three years and four months for the first set of proceedings and 3 years and 7 months for the second). He relied on Article 5 §§ 1 and 3 (right to liberty and security).   The Court held unanimously that there had been a violation of Article 5 § 1 concerning his detention from 17 September 1999 and 1 October 1999 and a violation of Article 5 § 3 with regard to the length of his detention in both sets of proceedings. He was awarded EUR 2,000 for non-pecuniary damage. (The judgment is available only in English.)     Violation of Article 6 § 1 (length) Stasiów v. Poland (no. 6880/02)   Violation of Article 13 The applicant, Karolina Stasiów, is a Polish national who was born in 1921 and lives in Cracow (Poland).   In July 1996 the applicant was given a suspended sentence of eight months’ imprisonment for slander, notably for calling another person a “dirty Negro”. The Supreme Court dismissed an appeal on points of law by the applicant in November 2000.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy), the applicant complained of the length of the criminal proceedings against her (four years and five months).   The Court held unanimously that there had been a violation of Article 6 § 1 and Article 13.   It awarded the applicant 1,500 euros (EUR) for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.)     No violation of Article 3 Ahmet Mete (No. 2) v. Turkey (no. 30465/02)   Violation of Article 13 The applicant, Ahmet Mete, is a Turkish national who was born in 1950 and lives in Izmir.   On 8 July 2001, at about 11 a.m., he was arrested on suspicion of being a member of the PKK (the Kurdistan Workers’ Party), an illegal organisation in Turkey. He was initially kept in detention at the Security Directorate Building in Nusaybin and later transferred to Izmir Security Directorate.   The applicant claimed during his interrogations that he was beaten, insulted, hosed with pressurised water, given electric shocks and raped with a truncheon.   He underwent medical examinations on 8 and 10 July 2001 but no signs of ill-treatment were found on his body. He was examined a third time on 13 July 2001 when the doctor noticed bruises on the applicant’s arms - one of the bruises was old.   The applicant complained of his ill-treatment during the criminal proceedings brought against him and the Izmir Public Prosecutor initiated an investigation into his allegations. The prosecutor sent the part of his case file regarding his ill-treatment in Nusaybin to the Nusaybin Public Prosecutor for further investigation.   Both prosecutors decided not to bring proceedings against the accused police officers as the applicant’s allegations were deemed to be unsubstantiated. The applicant appealed against those decisions and asked for a detailed medical examination to be made. His appeals, however, were dismissed.   The applicant relied on Article 3 (prohibition of torture and inhuman or degrading treatment) and Article   13 (right to an effective remedy).   The Court found, referring in particular to the three medical examinations, that there was insufficient evidence to substantiate the severe ill-treatment described by the applicant. It therefore held unanimously that there had been no violation of Article 3.   The Court noted that although the decisions not to prosecute were based on the three medical reports, no explanation was offered as to the origin of the bruises, which were recorded in the report dated 13 July 2001. The Court found it regrettable that despite the applicant’s requests, no additional medical examination was ordered. As a result of that failure and having regard to the lack of details in the medical reports, the Court found that the applicant had been deprived of the fundamental guarantees to which people in detention were entitled.   The Court further noted that the Izmir Public Prosecutor did not summon any of the police officers who had been involved in the interrogation of the applicant during his custody between 10 and 13 July 2001; nor was a statement taken from the doctor who had drafted the medical report dated 13 July 2001. As to the investigation held by the Nusaybin Public Prosecutor, the Court found it striking that neither the applicant nor his representative were ever given an opportunity to meet the accused police officers face to face during the course of the investigation.   In view of those circumstances, the Court concluded that the domestic proceedings did not provide the thorough, effective remedy and held unanimously that there had been a violation of Article 13   The applicant was awarded EUR   5,000 in respect of non-pecuniary damage and EUR 1,500 (less EUR   850 received in legal aid) for costs and expenses. (The judgment is available only in English.)   Ertuğrul Kılıç v. Turkey (no. 38667/02)   Violation of Article 1 of Protocol No. 1 The applicant, Ertuğrul Kılıç, is a Turkish national who was born in 1978 and lives in İzmir (Turkey).   The applicant was held in pre-trial detention from April 1995 to July 1997. Following his acquittal in December 1998, he brought a claim for compensation for the damage sustained on account of his unlawful detention. The lower courts awarded him the equivalent of EUR 1,640 in compensation and the Court of Cassation upheld the award in September 2001. The compensation was paid to him in December 2002.   Relying on Article 1 of Protocol No. 1 (protection of property) and Article 13 (right to an effective remedy), the applicant complained of the loss he had suffered as a result of the delayed payment of the compensation awarded to him.   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and considered that it was not necessary to examine separately the complaint under Article 13.   It held that the judgment constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR 620 for pecuniary damage and EUR 800 for costs and expenses. (The judgment is available only in French.)     Violation of Article 5 § 3 Kamil Öcalan v. Turkey (no. 20648/02)   Violation of Article 6 § 1 (length) The applicant, Kamil Öcalan, is a Turkish national who was born in 1966 and lives in Istanbul.   In July 1995 the applicant was arrested in the course of an operation against the illegal extreme left-wing organisation THKP/C-DEVSOL (Turkish People’s Liberation Party/Front). He was placed in pre-trial detention and made several applications to be released.   On 12 March 2003 the applicant was sentenced to 14 years and seven months’ imprisonment and was released on account of the time he had already spent in detention. The proceedings are currently pending in the Assize Court.   Relying on Article 5 § 3 (right to liberty and security) and Article 6 § 1 (right to a fair hearing within a reasonable time), the applicant complained of the length of his pre-trial detention (more than seven years and seven months) and of the criminal proceedings against him (almost 11 years and four months to date).   The Court held unanimously that there had been a violation of Article 5 § 3 and Article 6 § 1.   It awarded the applicant EUR 9,000 for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.)   Kırkazak v. Turkey (no. 20265/02)   Violation of Article 5 §§ 1 (c) and 4 The applicant, Selahattin Kırkazak, is a Turkish national who was born in 1969 and lives in Diyarbakır (Turkey).   He was arrested on 29 March 2002 and taken into police custody in March 2002 on suspicion of being a member of the illegal organisation Hizbullah. The medical report drawn up on that date did not mention any signs of blows to his body. When his detention was extended, the applicant was examined by a doctor, who found no traces of blows on his body but observed that he was in physical pain. The applicant underwent a further medical examination on 2 April 2002 after suffering a fall on the gendarmerie premises; on that occasion, the doctor observed, among other things, a 1 cm by 1 cm bruise on his right elbow, a subcutaneous haematoma and a 2 cm by 2 cm bruise on his left inner elbow and a 1 cm by 2 cm wound on his left knee. A final medical examination carried out on 29 April 2002 found no signs of violence on the applicant’s body.   On an unknown date the applicant was sentenced to 12 years and six months’ imprisonment.   The applicant alleged that he had been ill-treated while in police custody and complained that his detention had been unlawful. He relied on Articles 3 (prohibition of inhuman and degrading treatment), 13 (right to an effective remedy) and 5 (right to liberty and security).   The Court declared the complaints under Articles 3 and 13 inadmissible as being manifestly ill-founded. It further held unanimously that there had been a violation of Article 5 § 1 (c) on account of the applicant’s transfer to the gendarmerie premises after being placed in pre-trial detention and a violation of Article 5 § 4 on account of the lack of a remedy by which he could have complained of the transfer. The Court awarded the applicant EUR 2,500 for non-pecuniary damage and EUR 1,000 for costs and expenses, less the sum of EUR 685 already received from the Council of Europe in legal aid. (The judgment is available only in French.)   Selek v. Turkey (no. 43379/02)   Violation of Article 6 § 1 (length) The applicant, Faruk Selek, is a Turkish national who was born in 1953 and lives in Istanbul.   He was arrested 22 December 1994 and was later convicted of forgery and sentenced to 10 months imprisonment. That judgment was upheld on 27 May 2002.   He complained about the length of the criminal proceedings which lasted over seven years and five months. He relied on Article 6 § 1 (right to a fair trial within a reasonable time).   The Court held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 3,500 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in English.)   Tuncay v. Turkey (no. 1250/02)   Violation of Article 1 of Protocol No. 1 The applicant, Mehmet Sait Tuncay, is a Turkish national who was born in 1948 and lives in Hatay (Turkey).   In May 1980 he bought a plot of land in Hatay and registered it in his name in the title deed registry. In 1995, after having obtained the necessary building permission from Samandağ Municipality, he opened up a cafeteria on the land.   The land was subsequently deemed to be located in a coastline area and in 1999, as a result of proceedings brought by the Municipality, relying on Law no. 3621 (the Coastal Law, 4 April 1990), the applicant’s ownership record in the title deed registry was annulled. That decision was upheld in the Court of Cassation in 2001.   The applicant complained that the authorities’ had deprived him of his land without payment of compensation. He relied on Article 1 of Protocol No. 1 (protection of property).   The Court considered that, in the absence of adequate compensation in exchange for his 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 therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1. It held that the finding of that violation constituted it itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. (The judgments are 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 6 § 1 (fairness) Nistas GmbH v. Moldova (no. 30303/03)   Violation of Article 1 of Protocol No. 1 The applicant, Nistas GmbH, is a company registered in Germany with its head office in Frankfurt am Main.   The applicant company complained that final judgments in its favour were quashed in supervisory review proceedings. It relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   The Court noted that a final and binding judgment in the applicant’s favour was 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. 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. Accordingly, the Court held, unanimously, that the setting aside of the judgment in supervisory review proceedings violated Article 6 § 1.   The Court recalled that the sums awarded to the applicant by the judgments in question could be considered a possession. Quashing the judgments after they had become final therefore constituted an interference with the applicant’s right to the peaceful enjoyment of its possessions.     There being no public interest defence justifying that interference, the Court also held, unanimously, that there had been a violation of Article 1 of Protocol No 1.   The applicant was awarded EUR   60,597 for pecuniary damage, EUR   2,000 for non-pecuniary damage and EUR   2,400 for costs and expenses. (The judgment is available only in English.)     Violation of Article 6 § 1 (length and fairness) Dildar v. Turkey (no. 77361/01)   Violation of Article 1 of Protocol No. 1 The applicant, Mustafa Nazif Dildar, is a Turkish national who was born in 1948 and lives in Istanbul.   He complained about the insufficient interest due on the additional compensation awarded following the expropriation of his property and about the authorities’ failure to pay that sum. He also complained about the length of the proceedings. He relied on Article 1 of Protocol No. 1 (protection of property) and Article 6 § 1 (right to a fair hearing within a reasonable time).   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and a violation of Article 6 § 1 in respect of the non-enforcement of the judgment and in respect of the length of the proceedings (over seven years and two months). The applicant was awarded EUR   59,000 for pecuniary damage, EUR   2,000 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgments are available only in English.)       Length-of-proceedings cases   In the following cases the applicants complained, in particular, under Article 6 § 1 (right to a fair hearing within a reasonable time) of the excessive length of civil or administrative proceedings. The applicants in Dobál v. Slovakia , Preložník v. Slovakia and Šnegoň v. Slovakia also complained under Article 13 that they had no “effective remedy” concerning their length-of-proceedings complaints. The Court held that it was not necessary to examine separately the applicant’s Article 13 complaint in the case of Šnegoň v. Slovakia .     Violation of Article 6 § 1 (length) Siffre, Ecoffet and Bernardini v. France (nos 49699/99, 49700/99 and 49701/99) Wojtunik v. Poland (no. 64212/01) Šnegoň v. Slovakia (no. 23865/02)     Violation of Article 6 § 1 (length)   Violation of Article 13 Dobál v. Slovakia (no. 65422/01) Preložník v. Slovakia (no. 54330/00)   ***   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.