CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 2 octobre 2007

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Poland (application no. 39742/05)   No violation of Article 5 § 4 The applicant, Piotr Baranowski, is a Polish national who was born in 1975 and lives in Kamińsk (Poland).   On 18 December 2001 Mr Baranowski was arrested and remanded in custody on suspicion of, in particular, robbery, theft and leading an organised criminal gang. That gang was known for its brutality and ruthlessness and illegal trafficking of firearms. At that time the Warsaw Regional Prosecutor was carrying out an investigation into more than 50 other members of criminal gangs, who cooperated closely with each other and were connected to the Polish mafia. Mr Baranowski appealed without success against the decisions to extend his pre-trial detention between March 2002 and September 2005. He was found guilty in December 2004, along with the other 50 gang members, and sentenced to seven years imprisonment and a fine. The detention order was quashed in January 2006 and the applicant released on bail on 7   March 2006. The case, amounting to 149 volumes, was remitted for re-examination in November 2006.   Relying on Article 5 §§ 3 and 4 (right to liberty and security) of the European Convention on Human Rights, Mr Baranowski alleged that the length of his detention on remand was excessive and that his appeals against the decisions to prolong his detention were not examined “speedily”.   The European Court of Human Rights concluded that the grounds given for Mr Baranowski’s pre-trial detention, namely the serious nature of the offences which involved organised crime, the risk of him influencing co-accused and witnesses and the need to obtain evidence, were “relevant” and “sufficient” for holding him in custody for one year and five months. It found that the length of the investigation and the trial was justified given the exceptional complexity of the case and that the authorities had shown “special diligence” in carrying out the proceedings. The Court therefore held unanimously that there had been no violation of Article 5 § 3 of the Convention. It further held unanimously that there had been a violation of Article 5 §   4 only as regards the “speediness” of review concerning one of the decisions to prolong the applicant’s detention, namely the decision of 6 February 2004, which had been delayed by 45 days and had not been justified by the Government. There had, however, been no violation of that article as regards the authorities’ examination of the applicant’s remaining appeals. Mr   Baranowski was awarded 500   euros   (EUR) for non-pecuniary damage and EUR   500 for costs and expenses. (The judgment is available only in English.)     Violation of Article 5 § 3 Arı and Şen v. Turkey (no. 33746/02) Süer and Others v. Turkey (no. 74408/01) The applicants are ten Turkish nationals: Alibaba Arı, Ali Şen, Ferit Süer, Ali Kutlu, Muhittin Denktaş, Aziz Karasu, Fevzi Durusoy, Ahmet Aslan, Hasan Uçar and Mehmet Kuytu, born in 1962, 1963, 1973, 1955, 1983, 1984, 1955, 1964, 1967 and 1963, respectively. Mr Arı and Mr Şen are currently in prison. The other eight applicants live in Sanliurfa (Turkey).   The first two applicants were arrested in October 1993 and the other eight in April 2001: they were all later found guilty of membership of an illegal organisation.   Relying on Article 5 § 3 (right to liberty and security), the applicants complained about the excessive length of their detention on remand ( Arı and Şen v. Turkey ) or police custody ( Süer and Others v. Turkey ). Mr Arı and Mr Şen spent nine years in detention on remand; Mr Süer, Mr Karasu, Mr Denktaş and Mr Kuytu spent five days in police custody before seeing a judge and Mr Aslan, Mr Kutlu, Mr Uçar and Mr Durusoy six days.   In both cases, the Court held unanimously that there had been a violation of Article 5 § 3 on account of the excessive length of the applicants’ detention on remand or police custody. Mr   Arı and Mr Şen were each awarded EUR   7,000 for non-pecuniary damage, and EUR   1,000, jointly, for costs and expenses. Mr Aslan, Mr Kutlu, Mr Uçar and Mr Durusoy were each awarded EUR   1,000 and Mr Süer, Mr Karasu, Mr Denktaş and Mr Kuytu each EUR   500 for non-pecuniary damage. (The Arı and Şen judgment is available only in English and the Süer and Others v. Turkey judgment only in French.)     Violation of Article 6 § 1 (fairness) Birdal v. Turkey (no. 53047/99)   Violation of Article 10 The applicant, Akın Birdal, is a Turkish national who was born in 1948 and lives in Ankara.   In September 1995, on World Peace Day, Mr Birdal gave a speech at a discussion panel organised by the United Socialist Party in Mersin. Adana State Security Court, finding that the applicant had alleged that Kurdish citizens had not been protected by the Constitution, convicted the applicant in December 1998 of incitement to hatred and hostility. He was sentenced to a fine and one year’s imprisonment, which he served in 2000. Ultimately, in February 2005 the applicant was acquitted of all charges against him but, seeing as the law whereby he could have obtained redress only entered into force in June 2005, he could not claim compensation for the time he had spent in prison.   Relying on Article   10 (freedom of expression) and Article 6 § 1 (right to a fair trial), Mr   Birdal complained that his right to freedom of expression had been infringed and that he had not received a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench of the court which had convicted him.   The complaint concerning the lack of independence and impartiality of the Adana court raised an issue which had already been submitted to the Court. It did not see any reason to reach a different conclusion in the applicant’s case, having found that he could have legitimately feared that that court might have allowed itself to be unduly influenced. The Court therefore held unanimously that there had been a violation of Article 6 § 1.   The Court carefully examined Mr Birdal’s speech and the context within which it had been given and found that it was a critical assessment of the situation in south-east Turkey at the relevant time and did not encourage violence, armed resistance or insurrection. It therefore did not represent hate speech. Accordingly, the Court concluded that the reasons given for convicting and sentencing the applicant had been disproportionate to the aims pursued and had not been “necessary in a democratic society” and held that there had been a violation of Article 10. The applicant was awarded EUR   5,000 for non-pecuniary damage and EUR   2,000 for costs and expenses. (The judgment is available only in English.)     No violation of Article 2 Dölek v. Turkey (no. 39541/98)   No violation of Article 13 The applicant, Sultan Dölek, is a Turkish national who was born in 1958 and lives in Germany. She lodged the application on her own behalf, on that of her husband Mustafa Hacı Dölek, who died in 1995, on behalf of their children, Ali and Figen, who were underage at the relevant time, and on behalf of the deceased’s brother and sister, Ali and Elif.   On 24 June 1995 the security forces visited the applicant’s home in the province of Kahramanmaraş (Turkey), in order to conduct a search. The investigation found that the applicant took a long time to open the door of the house, and that her husband attempted to grab a weapon belonging to a law-enforcement officer and was hit by bullets during the skirmish. At first sight, Mustafa Hacı Dölek appeared to have been hit by two bullets in the legs. The officers transported him to hospital, but he died from his wounds before arriving. The doctor decided that it was not necessary to carry out an ordinary post-mortem examination, since death had occurred as a result of blood loss. The applicant filed a complaint in June 1995, challenging the record of the examination of the corpse and alleging that her husband had also been struck by a bullet in the chest. She also alleged that the police officers had threatened to kill her in order to dissuade her from speaking, and had struck her; she requested the exhumation of her husband’s corpse and a full classical autopsy. An autopsy was carried out in July 1995, and concluded that Mustafa Hacı Dölek’s death had been due to injuries and complications in the liver and left lung, caused by a bullet which had struck the right side of his thorax. As a result, in May 1998 the Ankara assize court convicted a police officer of manslaughter and sentenced him to eight years’ imprisonment, which was subsequently reduced a suspended sentence of one year, one month and ten days, in view of the defendant’s good conduct.   Relying on Articles 2 (right to life) and 13 (right to an effective remedy), the applicant alleged that her husband had been intentionally killed by the security forces during a search of their home and complained that the suspended sentence imposed on the person responsible amounted to impunity. She also complained that there was no effective remedy in Turkish criminal procedure. Also relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant complained of the suffering caused by her husband’s death and the fact that she had been beaten in front of her children during the search. She further alleged that the authorities had tried to make her withdraw her application by paying her and threatening her, in breach of Article 34 (right of individual petition). In addition, she relied on Article 6 § 1 (right to a fair hearing), Article 8 (right to respect for private and family life) and Article 1 of Protocol No. 1 (protection of property).   The Court considered that it had not been provided with any conclusive evidence that Mustafa Hacı Dölek had been killed intentionally. It noted that the use of force had been a direct result of the latter’s reaction and noted that the Turkish courts had themselves concluded that the use of force had been disproportionate and had convicted the officer in question of having exceeded his legal powers. Accordingly, the Court concluded unanimously that there had been no violation of Article 2.   The Court also concluded, by five votes to two, that there had been no violation of Article 2 concerning the investigations conducted into the circumstances in which the applicant’s husband had been killed.   It also noted that the applicant had not shown to the Court’s satisfaction why she had submitted no request for compensation to the Turkish courts in parallel with the criminal procedure. Accordingly, the Court concluded unanimously that there had been no violation of Article 13, and declared the remainder of the application inadmissible. (The judgment is available only in French.)     Violation of Article 6 § 1 (length) Mahmut Aslan v. Turkey (no. 74507/01)   Violation of Article 13 The applicant, Mahmut Aslan, is a Turkish national who was born in 1959 and lives in Seewen (Switzerland).   Relying on Article 6 § 1 (right to a fair trial within a reasonable time) and Article 13 (right to an effective remedy), Mr Aslan complained about the length of criminal proceedings brought against him for membership of an illegal organisation. He was convicted as charged in February 1985 and sentenced to 24 years’ imprisonment but finally released in November 1990. The criminal proceedings against the applicant were eventually discontinued on account of the statutory time-limit.   The Court found that the proceedings having lasted 11 years and five months had been excessive and held unanimously that there had been a violation of Article 6 § 1. The complaint under Article 13 concerning the lack of an effective remedy under Turkish law, whereby the applicant could have contested the length of the proceedings against him, raised an issue which had already been submitted to the Court. It did not see any reason to reach a different conclusion in the applicant’s case and therefore held unanimously that there had been a violation of Article 13. Mr Aslan was awarded EUR 9,500 for non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in English.)   Sara Kaya and Others v. Turkey (no. 47544/99) Violation of Article 2 (investigation) The applicants, Ms Sara Kaya, Mr Abdulbaki Kaya, Mr Mehmet Kaya, Ms Hatice Kaya and Ms Zozan Kaya are respectively the widow, sons and daughters of Mr Şefik Kaya, whose body was found on 13 September 1998. They were born in 1940, 1965, 1969, 1971 and 1974 respectively and live in Mersin (Turkey).   On 5 July 1998 Şefik Kaya left his home in order to water agricultural land situated in the hamlet of Manisor (near Lice, Diyarbakır, Turkey), and did not return. Applicant Sara Kaya informed the gendarmerie of her husband's disappearance on 9 July 1998. On 13 September 1998 applicant Hatice Kaya was informed that her father’s corpse was lying beside the Manisor road. The source of this information, a man named Şevket, said that “everyone is talking about it”. Accompanied by gendarmes, Hatice Kaya then went to the location mentioned and identified her father’s remains, consisting solely of bones, from his shoes and other clothing. The site report drawn up on the same day noted that spent cartridges from a Kalashnikov rifle were found near the body. The investigation into Şefik Kaya’s death is still pending before the Lice prosecution service, with no developments since 2002.   Relying on Article 2 (right to life) and Article 13 (right to an effective remedy), the applicants alleged that Şefik Kaya’s right to life had not been respected and that he had been the victim of unnecessary use of force by the security forces. They also complained that the investigation carried out by the Turkish authorities had been ineffective. Under Article 14 (prohibition of discrimination), they alleged that Şefik Kaya had been killed because of his Kurdish origins.   The Court noted that, contrary to the applicants’ allegations, the evidence before it did not indicate that their relative had been killed by agents of the State. It emphasised that the applicants had not raised those allegations with the Turkish authorities at any stage and that there was no documentary evidence to support the version of events submitted to the Court. The Court therefore concluded unanimously that there had been no violation of Article 2.   With regard to the investigation, however, the Court noted that, with the exception of the relatives’ statements, the case file contained no information on any searches carried out by the Turkish authorities between the date of Şefik Kaya’s disappearance and the discovery of his corpse. The Court was particularly puzzled by the lack of vigilance on the part of the authorities, who seemed to have been the last to be informed of the place where the corpse was to be found. It also noted that there had been no progress in the investigation between December 1999 and December 2001. The Court therefore concluded, by six votes to one, that there had been a violation of Article 2 because the investigations conducted by the national authorities into the circumstances of Şefik Kaya’s death could not be considered effective.   It declared the complaint under Article 14 inadmissible and held that it was not necessary to examine separately the complaint under Article 13. By six votes to one, the Court awarded the applicants EUR   10,000 for non-pecuniary damage. (The judgment is available only in French.)     Repetitive cases   The following cases raised issues which have already been submitted to the Court.   Bolluk v. Turkey (no. 34506/03)   Violation of Article 6 § 1 (fairness) In this case the applicant complained of the lack of fairness in the proceedings brought against him on charges of assault and battery. The Court found that there had been a violation of Article 6 § 1 in that the applicant’s case had not been heard in public by the trial and appellate courts.   Çeliker v. Turkey (no. 75573/01)   Violation of Article 6 § 1 (fairness) The case concerned the applicant’s complaint about the unfairness of criminal proceedings against her for aiding and abetting an illegal organisation. The Court found that the court which had tried and convicted her had not been independent and impartial on account of the presence of a military judge on the bench.   Hadrell v. the United Kingdom (no. 61038/00)   Struck out The case concerned the applicant’s complaint under Article 8 (right to respect for private and family life), Article 14 (prohibition of discrimination) and Article 1 of Protocol No. 1 (protection of property) that, because he was a man, he was denied social security benefits equivalent to those received by widows. The applicant had not replied to the Court’s requests to put forward claims with a view to reaching a friendly settlement or making further comments and it therefore concluded that he did not intend to continue with his application. No special circumstances concerning respect for human rights required the application to be examined any further either and, accordingly, the Court decided that the application should be struck off its list of cases.     Length-of-proceedings cases   In the following cases, the applicants complained in particular about the excessive length of (non-criminal) proceedings. The applicant in the case of Komanický v. Slovakia (No. 2) also complained that he had no effective remedy concerning his length-of-proceedings complaint.     Violation of Article 6 § 1 (length) Komanický v. Slovakia (No. 2) (no. 56161/00)   Violation of Article 13     Violation of Article 6 § 1 (length) Yazıcıoğlu v. Turkey (no. 43709/98) Bhandari v. the United Kingdom (no. 42341/04)   ***   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) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   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 Convention.