CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 16 décembre 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 } .sA36B60A1 { font-family:Arial; 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 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   921 16.12.2008   Press release issued by the Registrar   Chamber judgments concerning Lithuania, Moldova, Poland, Portugal, Romania, Serbia, Slovakia, Spain, Sweden and   Turkey   The European Court of Human Rights has today notified in writing the following 26 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.     Violation of Article 8 Gulijev v. Lithuania (application no. 10425/03) The applicant, Ibrahim Gulijev, is an Azerbaijani national who was born in 1971 and lives in Biedermansdorf (Austria). His wife and two children are Lithuanian citizens and live in Lithuania.   Relying in particular on Article   8 (right to respect for private and family life) of the European Convention on Human Rights, Mr Gulijev complained about his expulsion from Lithuania to Azerbaijan in November 2003. He is prohibited from re-entering Lithuania until 2099.   The Court noted that the authorities’ refusal to grant the applicant a temporary residence permit and, consequently, his expulsion from Lithuania, had been based solely on a report by the State Security Department, classified as “secret”, which alleged that he had been a threat to national security. However, the contents of that report had never been disclosed to the applicant in the administrative proceedings to deport him. Likewise, no objective material had been presented to the Strasbourg Court to demonstrate that the domestic authorities had good reason to suspect the applicant of having been such a threat. In fact, the authorities had already examined the applicant’s background in the past and had seen no reason to refuse him a temporary residence permit. Moreover, in view of the fact that the applicant’s wife had strong social and cultural ties with Lithuania and that his daughters had been born in that country and lived there all their lives, the Court could not accept, as suggested by the Government, that the family could have established its residence in Azerbaijan. The applicant’s expulsion had therefore amounted to an interference with his right to respect for his family life. Accordingly, the European Court of Human Rights held unanimously that there had been a violation of Article   8 of the Convention and awarded Mr   Gulijev 5,000   euros   (EUR) in respect of non-pecuniary damage and EUR   700 for costs and expenses. (The judgment is available only in English.)   Violation of Article 6 § 1 (fairness) Năvoloacă v. Moldova (no. 25236/02) The applicant, Ştefan Năvoloacă, is a Moldovan national who was born in 1968 and lives in Sîngerei (Moldova).   Acquitted of murder at first instance in 2001, Mr Năvoloacă complained that the Supreme Court of Justice subsequently convicted and sentenced him to 20 years’ imprisonment without a re-hearing of the case. He relied on Article   6   §   1 (right to a fair trial).   Given what had been at stake for the applicant, the Court considered that the issues to be determined by the Supreme Court could not have been properly examined without a direct assessment of evidence given by the applicant in person and by the witnesses in the case. Fairness therefore required that the Supreme Court order a rehearing. Accordingly, the Court held unanimously that there had been a violation of Article   6   §   1 and awarded Mr   Năvoloacă EUR   5,000 in respect of non-pecuniary damage. (The judgment is available only in English.)   Violation of Article 10 No violation of Article 6 § 1 Frankowicz v. Poland (no. 53025/99) The applicant, Ryszard Frankowicz, is a Polish national who was born in 1952 and lives in Tarnów (Poland). He is a gynaecologist and was President of the Association for the Protection of the Rights of Patients in Poland.   The case concerned disciplinary proceedings brought against the applicant for a report he had prepared on the treatment of a patient in which he was critical of another doctor. He was sanctioned by the Medical Court and given a reprimand. He relied on Article   6   §   1 (right to a fair hearing) and Article   10 (freedom of expression).   The Court accepted that the relationship between doctors and patients, based on trust and confidentiality, might imply the need to preserve solidarity between members of the medical profession. However, it also recognised the right of every patient to consult another doctor for a second opinion on the treatment he or she had received, and for an honest and objective evaluation of their doctor’s actions. In the applicant’s case, the authorities had concluded, without having attempted to verify the truthfulness of the findings in the medical opinion, that the applicant had discredited another doctor. That decision was made on the basis of the absolute prohibition in Poland on any criticism between doctors. The Court considered that that absolute prohibition was likely to discourage doctors from providing their patients with an objective opinion on their health and any treatment received, which could compromise the very purpose of the medical profession, namely to protect the health and life of patients. The Court therefore found that the interference with the applicant’s freedom of expression had not been proportionate to the legitimate aim pursued, namely protecting the reputation of others, and held unanimously that there had been a violation of Article   10. However, the Court considered that the applicant’s doubts about the independence and impartiality of the members of the Medical Courts had not been sufficiently substantiated and accordingly held that there had been no violation of Article   6   §   1. The Court awarded Mr   Frankowicz EUR   3,000 in respect of non-pecuniary damage. (The judgment is available only in English.)   No violation of Article 8 Kaleta v. Poland (no. 11375/02) The applicant, Anton Kaleta, is a German national who was born in 1948 and lives in Taufkirchen (Germany). He has a daughter, M., born in 1989 of whom his ex-wife was awarded parental rights by the Polish courts in June 1995; he was granted visiting rights.   The case concerned Mr Kaleta’s allegation that the Polish authorities have failed to enforce his right of contact with his daughter. He relied on Article   8 (right to respect for private and family life).   The Court noted in particular that the domestic authorities’ enforcement of the applicant’s visiting rights had been made particularly difficult by the conflict between himself and his ex-wife. His ex-wife had been fined in 2005 for failing to appear at meetings; the applicant himself had also failed to undertake effective steps to improve contact with his daughter between October 1995 and November 1996. As time went by, his daughter had matured and made her own decisions concerning her father and in January 2005, at that time sixteen, she had stated that she no longer wished to have any contact with him. In those circumstances, the Court held unanimously that there had been no violation of Article   8. (The judgment is available only in English.)   Violation of Article 6 § 1 (length) Pawlak v. Poland (no. 46887/06) The applicant, Leszek Pawlak, is a Polish national who was born in 1964 and lives in Lublin (Poland).   Relying on Article 6 § 1 (right to a fair trial within a reasonable time), the applicant complained of the excessive length of criminal proceedings brought against him for extortion involving the use of violence and threatened use of a firearm, in which he was sentenced to nine years’ imprisonment.   Observing that the length of the proceedings – approximately ten years and four months – had been excessive, the Court held unanimously that there had been a violation of Article   6   §   1. It awarded the applicant EUR   4,000 for non-pecuniary damage. (The judgment is available only in French.)   Violation of Article 6 § 1 (fairness) Sergiu Popescu v. Romania (no. 4234/04) The applicant, Sergiu Popescu, is a Romanian national who was born in 1937 and lives in Ploieşti (Romania).   The applicant complained that a final judgment in which he had been acquitted had been quashed on an application by the Procurator General, and that he had subsequently been given a one-year suspended prison sentence for making a false statement. He relied, in particular, on Article 6 § 1 (right to a fair trial), Article 13 (right to an effective remedy) and Article 4 of Protocol No. 7 (right not to be tried or punished twice).   The Court held unanimously that there had been a violation of Article 6 § 1 on account of the failure to comply with the principle of legal certainty and considered that it was not necessary to examine separately the applicant’s other complaints. It awarded him EUR   5,000 for non-pecuniary and pecuniary damage and EUR   400 for costs and expenses. (The judgment is available only in French.)   Violation of Article 6 § 1 (fairness) Violation of Article 1 of Protocol No. 1 Vlahović v. Serbia (no. 42619/04) The applicant, Dragan Vlahović, is a Serbian national who was born in 1955 and lives in Niš (Serbia).   Relying on Article   6   §   1 (right to a fair hearing) and Article   1 of Protocol No.   1 (protection of property), the applicant complained about non-enforcement of a judgment in his favour with regard to salary arrears.   The Court held unanimously that there had been a violation of Article   6   §   1 and Article   1 of Protocol No.   1 on account of the Serbian authorities’ failure to take all necessary measures to enforce the judgment in the applicant’s favour between March 2004 and February 2007. Mr   Vlahović was awarded EUR   1,000 in respect of non-pecuniary damage and EUR   700 for costs and expenses. (The judgment is available only in English.)   No violation of Article 6 § 1 Bazo González v. Spain (no. 30643/04) The applicant, José Félix Bazo González, is a Spanish national who was born in 1950 and lives in Trujillanos-Badajoz (Spain).   Mr Bazo González complained, among other things, about the lack of a public hearing before the appellate court in criminal proceedings brought against him for attempted smuggling, in which he was convicted and sentenced to 15 months’ imprisonment. He had previously been acquitted at first instance following a public hearing. He relied in particular on Article   6   §   1 (right to a fair hearing).   Having regard to the appellate court’s examination of the applicant’s case, the Court considered that a public hearing had not been necessary. It accordingly held by five votes to two that there had been no violation of Article 6 §   1. (The judgment is available only in French.)   Violation of Article 10 Khurshid Mustafa and Tarzibachi v. Sweden (no. 23883/06) The applicants, Adnan Khurshid Mustafa, and his wife, Weldan Tarzibachi, are Swedish nationals of Iraqi origin, who were born in 1957 and 1963 respectively and live in Västerås (Sweden).   Relying on Article   10 (freedom to receive information) and Article   8 (right to respect for private and family life), the applicants complained that they and their three children were forced to move from their rented flat in Rinkeby (a suburb of Stockholm) in June 2006 because they refused to remove a satellite dish.   The Court observed that the satellite dish enabled the applicants to receive television programmes in Arabic and Farsi from their country of origin (Iraq). That information included political and social news and was of particular interest to them as an immigrant family who wished to maintain contact with the culture and language of their country of origin. There had not been any other means at the relevant time for the applicants to have access to such programmes and the dish could not be placed anywhere else. Nor could news obtained from foreign newspapers and radio programmes in any way be equated with information available via television broadcasts. Furthermore, the landlord’s concerns about safety had been examined by the domestic courts who had found that the installation had been safe. Moreover, the fact that the applicants had effectively been evicted from their home with their three children had been disproportionate to the aim pursued, namely the landlord’s interest of upholding order and good custom. The Court therefore concluded that the interference with the applicants’ right to freedom of information had not been “necessary in a democratic society” and held unanimously that there had been a violation of Article   10. It further held unanimously that there was no need to examine the complaint under Article   8. The applicants were awarded EUR   6,500 in respect of pecuniary damage, EUR   5,000 in respect of non-pecuniary damage and EUR   10,000 for costs and expenses. (The judgment is available only in English.)   No violation of Article 3 (treatment) Violation of Article 3 (investigation) Ataş and Seven v. Turkey (no. 26893/02) The applicants, Mukadder Ataş and Süheyla Seven, are Turkish nationals who were born in 1977 and 1978 respectively and live in Batman (Turkey).   The case concerned the applicants’ allegation that they were tortured and raped by the security forces following their arrest in September 1998 on suspicion of membership of an illegal organisation, the PKK (the Kurdistan Workers’ Party). They also alleged that the authorities failed to carry out an effective investigation into their allegations. They relied on Article   3 (prohibition of inhuman or degrading treatment).   In particular, the applicants claimed that, blindfolded and stripped naked, they had been given electric shocks, beaten, hung from their arms and raped by gendarmes inserting a truncheon into their anus and vagina. Following their complaints of torture and rape, Diyarbakır Chief Public Prosecutor’s office issued a decision of non-jurisdiction and transferred the case file to the Diyarbakır Provincial Administrative Council. That body decided that that there was not enough evidence to bring criminal proceedings against the gendarmerie officers and consequently issued a direction of “no prosecution”. The case was automatically referred to the Supreme Administrative Court for review; that body qualified the alleged offence as ill-treatment under Article 245 of the Criminal Code and suspended the criminal proceedings against the gendarmes under Law No. 4616. That law allows for certain criminal cases to be suspended and discontinued if no offence of the same or a more serious kind is committed within a five-year period.   Released from detention on remand in May 1999, the applicants were shortly after acquitted as the courts found no evidence to prove that they had been involved in PKK activities.   The Court found that the applicants had failed to provide sufficient evidence to substantiate their allegations of ill-treatment; on the other hand, three medical reports provided by the Government stated that there had been no sign of ill-treatment on the applicants’ bodies or indication that they had had sexual intercourse. The material in the case file therefore did not show to the required standard of proof that the applicants had been tortured as alleged. Accordingly, the Court held unanimously that there had been no violation of Article   3 in that respect.   However, the Court found, as it had in previous cases against Turkey, that bodies like the Provincial Administrative Council, which were in charge of investigations concerning similar allegations directed against security forces, could not be regarded as independent, as they had been made up of civil servants hierarchically dependent on the Governor, an executive officer linked to the very security forces under investigation. Furthermore, the proceedings brought against the accused gendarmes had not produced any concrete results and, the criminal proceedings against them having been suspended, they had effectively enjoyed virtual impunity, despite the evidence against them. Consequently, the Turkish criminal-law system, as applied in the applicants’ case, had proven to be far from rigorous and had had no dissuasive effect. Accordingly, the Court concluded that the domestic authorities had not effectively investigated the applicants’ allegations of ill-treatment, in further violation of Article 3. Mukadder Ataş and Süheyla Seven were each awarded EUR   5,000 in respect of non-pecuniary damage and EUR   3,000, jointly, for costs and expenses. (The judgment is available only in English.)   Revision Davut Mıçooğulları v. Turkey (no. 6045/03) The applicant, Davut Miçooğulları, is a Turkish national who was born in 1928 and lives in Tur (Turkey).   In a judgment of 24 May 2007 the Court held that there had been a violation of Article 1 of Protocol No.   1 (protection of property) because the applicant had received no compensation for the transfer to the State Treasury of a plot of land belonging to him, and a violation of Article 6 § 1 (right to a fair hearing within a reasonable time). It also awarded the applicant EUR   30,000 for pecuniary damage, EUR   900 for non-pecuniary damage, and EUR   500 for costs and expenses.   The Turkish Government requested the Court to revise its judgment on the ground that on 5   December 2006 part of the applicant’s property had been registered in his name in the land register.   The Court decided unanimously to revise the judgment and awarded the applicant EUR   18,000 for pecuniary damage. (The judgment is available only in French.)   Violation of Article 6 § 1 (length) Dedeman v. Turkey (no. 12248/03) The applicant, Nazire Dedeman, is a Turkish national who was born in 1949 and lives in Istanbul.   The applicant complained that the length of criminal proceedings brought against her for defamation through the press had been excessive. She relied on Article 6 § 1 (right to a fair hearing within a reasonable time).   The Court held unanimously that there had been a violation of Article 6 § 1 on account of the excessive length of the proceedings (3 years) and awarded the applicant EUR   1,000 for non-pecuniary damage and EUR   3 for costs and expenses. (The judgment is available only in French.)   Violation of Article 1 of Protocol No. 1 Samatya Surp Kevork Ermeni Kilisesi, Mektebi Ve Mezarlığı Vakfı Yönetim Kurulu v. Turkey (no. 1480/03) Yedikule Surp Pırgiç Ermeni Hastanesi Vakfı v. Turkey (no. 36165/02) The applicants, Samatya Surp Kevork Ermeni Kilisesi, Mektebi Ve Mezarlığı Vakfı Yönetim Kurulu ( The Board of Governors of the Samatya Surp Kevork Armenian Church, School and Cemetery ) and Yedikule Surp Pırgiç Ermeni Hastanesi Vakfı ( Foundation for the Armenian Hospital in Yedikule ), are foundations under Turkish law that were established in 1832 under the Ottoman Empire by imperial decree. Their articles of association comply with the provisions of the Lausanne Treaty affording protection to foundations that provide public services for religious minorities.   The applicants complained about decisions in which the Turkish courts had set aside their title to property they had acquired as a gift – respectively 47 years and 40 years previously – on the ground that their status did not entitle them to acquire immovable property. They relied in particular on Article 1 of Protocol No. 1 (protection of property), Article 6 § 1 (right to a fair hearing) and Article 14 (prohibition of discrimination).   The Court held unanimously in both cases that there had been a violation of Article 1 of Protocol No. 1. It further held that it was not necessary to examine separately the applicants’ complaints under Article 6 § 1 and Article 14. In the case of Samatya Surp Kevork Ermeni Kilisesi, Mektebi Ve Mezarlığı Vakfı Yönetim Kurulu it awarded the applicant EUR   600,000 for pecuniary damage. In the case of Yedikule Surp Pırgiç Ermeni Hastanesi Vakfı the Court awarded the applicant EUR   275,000 for pecuniary damage. (The judgment is available only in French.)     Repetitive cases   The following cases raise issues which have already been submitted to the Court.   Violation of Article 1 of Protocol No. 1 Sousa Carvalho Seabra v. Portugal (no. 25025/05) The Court found the above violation in this case concerning the delay in calculating and paying the compensation awarded to the applicant for expropriation.   Violation of Article 1 of Protocol No. 1 Postolache v. Romania (no. 24171/02) The Court held unanimously that there had been a violation in this case concerning an action for recovery of possession.   Violation of Article 1 of Protocol No. 1 Terzioğlu and Others v. Turkey (nos. 16858/05, 23953/05, 34841/05, 37166/05, 19638/06 and 17654/07) The Court found the above violation in this case concerning the applicants’ complaints that the authorities had deprived them of their property without paying compensation.     Length-of-proceedings cases   In the following cases, the applicants complained in particular about the excessive length of (non-criminal) proceedings. The Court declared inadmissible the remainder of the applications in the cases of Zakrzewska and Mehmet Ali Kaplan and Others .   Violation of Article 6 § 1 (length) Chmielecka v. Poland (no. 19171/03) Ludwiczak v. Poland (no. 31748/06) Poznańska v. Poland (no. 822/05) Zakrzewska v. Poland (no. 49927/06) Stanković v. Serbia (no. 29907/05) Softel spol. s r.o. v. Slovakia (No. 1) (no. 32427/06) Softel spol. s r.o. v. Slovakia (No. 2) (no. 32836/06) Dokdemir and Others v. Turkey (nos. 44031/04, 44045/04, 44050/04, 44053/04, 44105/04, 44108/04, 44111/04, 44112/04, 44123/04, 44131/04, 44133/04, 44194/04, 44197/04, 44199/04, 45260/04 and 45283/04) Mehmet Ali Kaplan and Others v. Turkey (nos. 3224/05, 4884/05, 9504/05, 9545/05, 9568/05, 9600/05, 9658/05, 9695/05, 9720/05 and 13516/05)     ***   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.