CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 30 septembre 2008

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   670 30.9.2008   Press release issued by the Registrar   Chamber judgments concerning Italy, Poland, Portugal, Romania, Turkey and   the United Kingdom   The European Court of Human Rights has today notified in writing the following 25 Chamber judgments, none of which are final [1] .   Repetitive cases [2] and length-of-proceedings cases, with the Court’s main finding indicated, can be found at the end of the press release.     No violation of Article 8 Koons v. Italy (application no. 68183/01) The applicant, Jeffrey Lynn Koons, is an American national who was born in 1955 and lives in New York. His son L.M. was born in New York in 1992 from his marriage with a Hungarian national who had acquired Italian citizenship by naturalisation. L. M. who has Italian and American nationality, lives in Rome with his mother.   The applicant and Mrs S. have been litigating in the Italian courts about who should have exclusive custody of their child since 1994. Mr Koons complained of the Italian courts’ decisions, firstly to keep the child in Italian territory, thus preventing his son from visiting him at his home in the United States, and secondly to award custody to the mother, later to Rome social services and then to the mother again. He relied on Article 8 of the European Convention on Human Rights (right to respect for private and family life).   The European Court of Human Rights noted that the Italian authorities had made a thorough assessment of the family situation and the interests of all concerned, especially those of L.M., in order to find the solution most likely to provide him with a stable home environment, a necessary condition for his healthy and balanced development. It considered that the Italian judicial authorities had made every effort to protect the higher interests of the child, while always recognising the applicant’s right of contact, in a difficult situation marked by constant disagreement between the parties and their inability to put their son’s well-being first. The Court held by five votes to two that there had been no violation of Article 8. (The judgment is available only in French.)     No violation of Article 1 of Protocol No. 1 Marchi v. Italy (no. 58492/00) The applicant, Maria Pia Marchi, is an Italian national who was born in 1942 and lives in Lucca (Italy). She was formerly the owner of land in Lucca which was expropriated in June 1981 with a view to the construction of low-rent housing.   She brought proceedings for compensation in 1996, at the end of which the Italian courts ruled that the right to compensation had lapsed through expiry of the statutory time-limit. She complained that she had not been compensated for the expropriation of her land. She relied on Article 1 of Protocol No. 1 to the Convention (protection of property).   The Court noted that the applicant had not been compensated at the time of the expropriation. However, she had not taken the opportunity afforded by a judgment of the Constitutional Court which in principle gave her the possibility of obtaining the full market value of her property. That being so, the Court considered that it was conduct imputable to the applicant which had brought about the situation she complained of. It held unanimously that there had been no violation of Article 1 of Protocol No. 1. (The judgment is available only in French.)   Violation of Article 5 § 3 Markoń v. Poland (no. 2697/06) The applicant, Arkadiusz Markoń, is a Polish national who was born in 1975 and is currently serving a ten year prison sentence in Gdańsk Prison for armed robbery, illegal possession of weapons and being a member of an organised criminal group.   The case concerned, in particular, Mr   Markoń’s complaint about the excessive length of his detention on remand. He relied on Article   5 §   3 (right to liberty and security).   The Court concluded that the grounds given by the domestic authorities could not justify having detained the applicant for more than four years and ten months and therefore held unanimously that there had been a violation of Article   5 §   3. Mr   Markoń was awarded 1,500   euros   (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)   Violation of Article 6 § 1 (length) Crăciun v. Romania (no. 5512/02) The applicant, Nicolae Crăciun, is a Romanian national who was born in 1950 and lives in Bucharest.   In March 1994 criminal proceedings were brought against Mr Crăciun for fraud. He was convicted as charged in July 2001 but the proceedings against him are currently still pending on appeal. The case concerned the applicant’s complaint about the excessive length of those criminal proceedings against him. 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 on account of the excessive length, 14 years and four months for two levels of jurisdiction, of the criminal proceedings against Mr   Crăciun and awarded him EUR   7,200 in respect of non-pecuniary damage. (The judgment is available only in English.)   Violation of Article 8 Işıldak v. Turkey (no. 12863/02) The applicant, Sadi Işıldak, is a Turkish national who was born in 1966 and lives in Istanbul.   In November 2000 a police officer entered the applicant’s workshop, which is part of his home, without being asked by the applicant to come in and without a search warrant. The search was carried out in response to information from the applicant’s neighbours to the effect that drugs were consumed on the premises. The applicant complained on the following day, but no criminal investigation could be conducted in respect of the police officer since the district administrative committee, ruling on the basis of the investigation report produced by the police inspector charged with investigating the case, decided not to authorise one. Relying on Article 8 (right to respect for private and family life) and Article 13 (right to an effective remedy), the applicant complained of an infringement of his right to respect for his home.   The Court noted that at the relevant time the police could conduct searches without prior authorisation if delay might hamper an investigation, and had unfettered discretion to decide whether a search should be carried out and how extensive it should be. In the applicant’s case, the Court saw no reason to justify the lack of prior judicial review and found that the search had constituted interference with the applicant’s right to respect for his home. In addition, the Court observed that at the relevant time the applicant did not have an effective remedy whereby he could obtain judicial review of the lawfulness and necessity of the search. Consequently, the Court held unanimously that there had been a violation of Article   8. Lastly, it considered that it was not necessary to examine separately the complaint under Article   13. It awarded Mr Işıldak EUR   1,000 for non-pecuniary damage. (The judgment is available only in French.)   Violation of Article 8 Koç and Others v. Turkey (no. 38327/04) Nakçi v. Turkey (no. 25886/04) The seven applicants are Turkish nationals. They are or were detained in Gaziantep Prison (Turkey).   They complained of the prison authorities’ refusal to deliver correspondence addressed to them. They relied in particular on Article 8 (right to respect for correspondence).   The Court observed that it had already found that Articles 144 and 147 of Regulation no. 647 on prison management and the execution of sentences did not indicate with sufficient clarity the scope and manner of exercise of the authorities’ discretion to control prisoners’ correspondence. Similarly, it had previously noted that implementation of the regulation in practice did not appear to make up for this shortcoming.   The Court accordingly considered that the interference with the applicants’ right to respect for their correspondence was not “in accordance with the law” and therefore held unanimously that there had been a violation of Article 8. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage suffered by the applicants. (The judgments are available only in French.)   Violation of Article 5 § 3 Mehmet Şahin and Others v. Turkey (no. 5881/02) The four applicants, Mehmet Şahin, Ali Ekber Çağlan, Sedat Serçik and Özgür Barış Mercan, are Turkish nationals who were born in 1964, 1973, 1971 and 1978 respectively.   They were arrested in April 2001 on suspicion of belonging to an illegal organisation, the PKK (Workers’ Party of Kurdistan). After nine days in police custody they were placed in pre-trial detention and charged with membership of and aiding and assisting the PKK. In October 2002 they were acquitted. Relying in particular on Article 5 § 3 (right to liberty and security), they complained that the length of their detention in police custody had been excessive. In addition, under Article 3 (prohibition of inhuman or degrading treatment), Mr   Şahin alleged that he had been ill-treated while in police custody at a gendarmerie post.   The Court considered that the evidence submitted to it by Mr Şahin was not such as to enable it to establish that he had been ill-treated as alleged. In the absence of a firmer basis for his allegations, it considered that Mr Şahin could not criticise the judicial authorities for failing to discharge their obligation to conduct an “effective investigation”. Consequently, that part of the application was declared inadmissible.   As regards the complaint concerning the length of detention in police custody, the Court did not consider it to have been necessary to detain the applicants for nine days before they were “brought before a judge”. It accordingly held unanimously that there had been a violation of Article 5 § 3 and awarded each of the applicants EUR   2,500 for non-pecuniary damage and EUR   1,500 to the applicants jointly for costs and expenses (less EUR   850 paid by the Council of Europe in legal aid). (The judgment is available only in French.)   Violation of Article 6 § 1 (fairness) Melek Sima Yılmaz v. Turkey (no. 37829/05) The applicant, Melek Sima Yılmaz, is a Turkish national who was born in 1970 and lives in Erzurum (Turkey).   She complained of unfairness in the conduct of disciplinary and administrative proceedings concerning her dismissal from her teacher’s post on the ground that she had not complied with the dress code laid down in the regulations in force at the relevant time, which prohibited the wearing of headscarves by the staff of public institutions. She relied on Article   6 § 1 (right to a fair trial).   The Court observed that it had already examined in previous cases a complaint identical to the one raised by the applicant regarding the failure to supply her with a copy of the written opinion of State Counsel at the Supreme Administrative Court and found violations of Article 6 § 1 in those cases. It accordingly held unanimously that there had been a violation of Article 6 § 1 solely on account of the infringement of the right to adversarial proceedings before the Supreme Administrative Court and ruled that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage suffered by the applicant. (The judgment is available only in French.)   Violation of Article 1 of Protocol No. 1 Yakışır v. Turkey (no. 51965/99) The applicant, Ebuzeyt Yakışır, is a Turkish national who was born in 1972 and lives in Diyarbakır (Turkey).   The applicant complained of delay in executing a judgment in which the authorities had been ordered to pay him compensation for unlawful detention, and of the inadequacy of the default interest attached to the compensation. He relied in particular on Article 1 of Protocol No. 1 (protection of property).   The Court considered that the applicant had had to bear an excessive burden on account of the administrations’ shortcomings and held unanimously that there had been a violation of Article 1 of Protocol No. 1. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage suffered by Mr Yakışır and awarded him EUR   1,000 for pecuniary damage and EUR   500 for costs and expenses. (The judgment is available only in French.)   No violation of Article 8 Violation of Article 13 R.K. and A.K. v. the United Kingdom (38000/05) The applicants, R.K., and his wife, A.K., are British nationals who were born in 1972 and 1976, respectively. They live in Oldham (United Kingdom). They have a daughter, M., who was born in July 1998.   In September 1998 M. was taken to hospital with a fractured femur; doctors concluded that the injury had not been accidental and she was placed in the care of her aunt. Following another injury, M. was diagnosed with brittle bone disease. She was returned home in April 1999. The case concerned the applicants’ complaint that their daughter was placed temporarily in care due to a medical misdiagnosis. They relied on Articles   8 (right to respect for private and family life) and   13 (right to an effective remedy).   It was not disputed that the interim care order had interfered with the applicants’ right to respect for their family life. That interference had been “in accordance with the law” and pursued the legitimate aim of protecting M.. Indeed, the authorities, medical and social, had a duty to protect children and could not be held liable every time genuine and reasonably-held concerns about the safety of children in their families were proved, retrospectively, to have been misguided. The Court considered that M., a three-month old baby, had suffered a serious and unexplained fracture and that the social or medical authorities could not be faulted for not immediately diagnosing brittle bone disease, a very rare and difficult condition to identify in small infants. Moreover, the baby had been placed within her extended family and in close proximity to her parents’ home so that they could frequently and easily visit. As soon as another fracture had occurred outside of the applicants’ care, further tests had been carried out and, within weeks, M. had been returned to her home. The Court was therefore satisfied that the domestic authorities had had relevant and sufficient reasons to take protective measures, which had been proportionate in the circumstances and had given due and timely account to the applicants’ interests. Accordingly, the Court held unanimously that there had been no violation of Article 8.   However, the Court found that the applicants should have had available to them a means to claim that the local authority’s handling of procedures had been responsible for any damage they had suffered and to claim compensation. As such redress had not been available at the relevant time, the Court held unanimously that there had been a violation of Article   13 and awarded the applicants, jointly, EUR   10,000 in respect of non-pecuniary damage and EUR   18,000 for costs and expenses. (The judgment is available only in English.)     Repetitive cases   The following cases raise issues which have already been submitted to the Court.   Violation of Article 1 of Protocol No. 1 Companhia Agrícola Cortes e Valbom S.A. v. Portugal (no. 24668/05) The applicant company is the former owner of land expropriated in 1975 in an agrarian reform programme. The Court found the above violation on account of the amount of compensation paid to the company, which did not correspond to “fair compensation”, and on account of the delay in calculating and paying the final sum.   Violation of Article 6 § 1 (fairness) Violation of Article 1 of Protocol No. 1 Ana and Ioan Radu v. Romania (no. 24977/03) Piştireanu v. Romania (no. 34860/02) Cloşcă v. Romania (no. 6106/04)   Violation of Article 1 of Protocol No. 1 Constantin Popescu v. Romania (no. 5571/04) The Court found the above violations in these four cases concerning the authorities’ failure to enforce final judgments in the applicants’ favour in good time or at all.   Violation of Article 1 of Protocol No. 1 Filipescu v. Romania (no. 34839/03) The Court found the above violation in this case concerning an action to recover possession of immovable property.   Violation of Article 6 § 1 (fairness) Violation of Article 1 of Protocol No. 1 Gaciu v. Romania (no. 4630/03) The Court found the above violations on account of the setting aside of a final judgment in the applicants’ favour following an appeal by State Counsel.   Violation of Article 6 § 1 (fairness) Karadumanlı v. Turkey (no. 64293/01) The Court found the above violation on account of the presence of a military judge as a member of the court which had tried the applicant.     Length-of-proceedings cases   In the following cases, the applicants complained in particular about the excessive length of (non-criminal) proceedings.   Violation of Article 6 § 1 (length) Krzysztof Kaniewski v. Poland (no. 49788/06) Drăgănescu v. Romania (no. 29301/03) Duţă v. Romania (no. 29558/02) Nicolae Constantinescu v. Romania (no. 10277/04) S.C. Comprimex S.A. v. Romania (no. 32228/02) Şevket Sarı v. Turkey (no. 40200/04)     ***   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 Adrien Raif-Meyer (telephone: 00 33 (0)3 88 41 33 37) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   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.