CEDH · PRESS;GENERAL;ENG — 26 novembre 2002

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Turkey (application nos. 27209/95 and   27211/95) Friendly settlement Özkan Kılıç is a Turkish national who was born in 1964 and lives in Switzerland. At the material time he was the editor of the weekly Yeni Ülke (“New Country”) and the magazine Alternatif , of which he was also the proprietor.   On 28 October 1993 he was sentenced by the National Security Court to twelve months’ imprisonment and a fine of 100,000,000 Turkish liras (TRL) for disseminating separatist propaganda on account of the publication of four articles in the weekly Yeni Ülke . The court convicted him in his capacity as the editor and author after finding that one of the articles contained separatist propaganda and that the other three defended an illegal organisation, the PKK.   Furthermore, on 14 April 1994 the National Security Court sentenced the applicant to twenty months’ imprisonment and a fine of TRL 208,333,333 on account of the publication in the magazine Alternatif of an article criticising the authorities’ policy on the Kurdish problem. It tried him as the editor and proprietor of the magazine and as the author of the article, since he had not disclosed the author’s identity at the time of his initial examination.   Following the entry into force of Law no. 4126 of 27 October 1995, the National Security Court re-examined both cases. It reduced the applicant’s first sentence to six months’ imprisonment and a fine of TRL 50,000,000 and his second sentence to thirteen months and ten days’ imprisonment and a fine of TRL 111,111,110.   Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, the applicant complained of his criminal convictions for the publication of the articles. Relying on Article 6 § 1 (right to a fair hearing), he submitted that his case had not been heard by an independent and impartial tribunal on account of the presence of a military judge on the bench of the National Security Court.   The case has been struck out following a friendly settlement under which the applicant is to receive 6,097.96 euros (EUR) for damage and EUR 1,524.49 for costs and expenses.   The Turkish Government have also made the following declaration: “The Court’s rulings against Turkey in cases involving prosecutions under Article 312 of the Penal Code or under the provisions of the Prevention of Terrorism Act clearly show that Turkish law and practice urgently need to be brought into line with the Convention’s requirements under Article 10 of the Convention. This is also reflected in the interference underlying the facts of the present case.   The Government undertake to this end to implement all necessary reform of domestic law and practice in this area, as already outlined in the National Programme of 24 March 2001.   The Government refer also to the individual measures set out in the Interim Resolution adopted by the Committee of Ministers of the Council of Europe on 23 July 2001 (ResDH(2001)106), which they will apply to the circumstances of cases such as in the instant one.”   (The judgment is available only in French.)   (2)     Kınay and Kınay v. Turkey (no. 31890/96)   Friendly settlement Makbule and Ramazan Kınay, both Turkish nationals in 1956, are currently living in Istanbul.   According to the applicants, until 18 September 1994 they lived in Dirimpınar village in the Malazgirt district in the province of Muş.   On an unspecified date, while Ramazan Kınay was serving a prison sentence in Diyarbakır prison, Makbule Kınay was informed by the village mayor that the villagers’ houses were to be burned by security forces.   On 18 September 1995, at about 8 p.m., security forces, composed of 50-60 village   guards, special team members and gendarmes, arrived in the village. Some members of the security forces searched the applicants’ house; they seized valuables belonging to Makbule Kınay and manhandled and insulted her and her three children. They then set fire to the applicants’ house and its contents.     Makbule Kınay moved first to her relatives’ house in the Bulanık district of Muş and then to İstanbul, as a result of intimidation by the security forces. She later learnt that 75 tons of barley had been collected from their fields by the village guards.   The applicants claim that on 30 November 1995 Ramazan Kınay filed a petition with Üsküdar Chief Public Prosecutor’s office in İstanbul, complaining about the burning of his and his relatives’ houses by village guards. He requested permission to return to his village and compensation for the losses. No investigation was carried out into the applicants’ complaints.   According to the Government, as a convicted Kurdistan Workers’ Party (PKK) member, Ramazan Kınay was serving a prison sentence at the time of the alleged events. The authorities carried out an investigation into the applicants’ allegations of destruction of their property and their forced eviction from the village.     On 5 December 1997 Malazgirt Gendarme Commander took statements from the village mayor, who denied the applicants’ allegations, stating that there were families still living in the village and that the applicant Makbule Kınay moved out of the village of her own free will.     According to the records of the Land Registry, the applicants are the owners of 10,56   acres of land.     Subsequent to the investigation carried out by the authorities, it was understood that, at the relevant time, there were no village guards or operations being carried out in the region.   Relying on Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair hearing), 8 (right to respect for private and family life), 13 (right to an effective remedy) and 14 (prohibition of discrimination), the applicants complained about their alleged eviction from their village and destruction of their home and possessions by security forces.   The case has been struck out following a friendly settlement in which EUR 59,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses. Turkey has, moreover, made the following declaration: “The Government regret the occurrence of individual cases of destruction of home, property and possessions resulting from the acts of agents of the State in south-east Turkey, obliging civilians to leave their villages, and of failure by the authorities to carry out effective investigations into the circumstances surrounding such events, as in the case of the applicants, Makbule and Ramazan Kınay, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such acts and to remedy such failures.   It is accepted that such acts and failures in the applicants’ case constituted a violation of Articles 8 and 13 of the Convention and Article 1   of Protocol No. 1 and, given the circumstances of the destruction and the emotional suffering entailed, of Article 3 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the individual rights guaranteed by these Articles – including the obligation to carry out effective investigations – are respected in the future. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of destruction of property in circumstances similar to those of the instant application and in more effective investigations being carried out. “The Government consider that the supervision by the Committee of Ministers of the Council of Europe of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co-operation in this process will continue to take place.” (The judgment is available only in English.)   The following five applications were lodged by various Romanian nationals who, in their capacity as heirs, brought actions in the national courts with a view to recovering property that had been nationalised under Decree no. 92/1950 on nationalisation. They argued that their ascendants, who had been the owners of the property at the time, had been excluded from the scope of the decree on account of their profession or status. The applicants’ title to the property was recognised by the lower courts and some of the relevant judgments became final in the absence of an appeal. However, those judgments were quashed by the Supreme Court of Justice on the ground that the lower courts had no jurisdiction to review the application of the decree on nationalisation.   Relying on Article 6 § 1 (right to a fair hearing), the applicants complained of the Supreme Court of Justice’s refusal to recognise the courts’ jurisdiction to determine an action to establish title to property. In the Moşteanu case the applicants also submitted that they had been denied a hearing by an independent and impartial tribunal, on account of comments by the President of Romania in July 1994 requesting the authorities not to execute decisions by which the courts had declared null and void the nationalisation of property under the communist regime. Furthermore, in all five cases the applicants complained under Article 1 of Protocol No. 1 (protection of property) of an infringement of their right to the peaceful enjoyment of their possessions.   (The judgments are available only in French.)     Violation Article 6 § 1   Violation Article 1 of Protocol No. 1   (3)     Nagy v. Romania (no. 32268/96) (4)     Dragnescu v. Romania (no. 32936/96) (5)     Gavruş v. Romania (no. 32977/96)   The Court considered that in quashing a judgment that had become final, the Supreme Court of Justice had infringed the principle of legal certainty and, in so doing, the applicants’ right to a fair hearing. Furthermore, the Supreme Court’s ruling that the courts did not have jurisdiction to determine the applicants’ actions to establish title was in itself contrary to the right of access to a court. Accordingly, the Court held unanimously that there had been a violation of Article 6 § 1 on account of the lack of a fair hearing (because final judgments had been quashed) and on account of the denial of the right of access to a court.   As regards the alleged violation of the applicants’ right of property, the Court reiterated that their right to the property in question had been recognised by final judgments and had therefore been irrevocable. The judgments of the Supreme Court had had the effect of depriving them of their possessions. They had been deprived of part of their possessions without receiving any compensation or without the award of compensation being adequate. In the Nagy case, the Court also considered that although the applicant’s ownership was entered in the land register, the existence of two titles to the same property made the applicant’s ownership precarious and was comparable to the existence of an expropriation permit. Consequently, the Court concluded that the fair balance between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights had been upset and that the applicants had borne and continued to bear an individual and excessive burden. The Court accordingly held unanimously that there had been a violation of Article 1 of Protocol No. 1 in all three cases.   In the Nagy case, the Court awarded the applicant EUR 5,000 for non-pecuniary damage and EUR 400 for costs and expenses. In the Dragnescu case, it awarded the applicant EUR 4,000 for pecuniary damage and EUR 400 for non-pecuniary damage. In the Gavruş case, the Court ordered the restitution of the property in issue to the applicants within three months of the date on which the judgment became final. Failing that, the State was to pay them jointly EUR   40,000 for pecuniary damage. The Court also awarded them jointly EUR 4,000 for non-pecuniary damage.   (6)     Canciovici and Others v. Romania (no. 32926/96)                        Violation Article 6 § 1   Article 1 of Protocol No. 1: inadmissible   (7)     Moşteanu and Others v. Romania (no. 33176/96)                           Violation Article 6 § 1   No violation Article 1 of Protocol No. 1   In both cases, the Court noted that there had not been a final and irrevocable judgment in the applicants’ favour. However, it held unanimously that the Court of Appeal’s ruling that it did not have jurisdiction to determine the applicants’ action to establish title was in itself contrary to the right of access to a court. The Court accordingly held unanimously that there had been a violation of Article 6 § 1 on that account.   As regards the complaint raised in the Moşteanu case concerning the Supreme Court’s lack of independence, the Court held that the statements by the President of Romania had been addressed to the authorities and that there was nothing to suggest that they had influenced the judges of that court who had heard the applicants’ case. Moreover, merely applying the case-law of an authority such as the Supreme Court did not, in the Court’s view, infringe the rights and duties of the lower courts to carry out a wholly independent examination of cases before them. Accordingly, the Court held unanimously that there had been no violation of Article 6 § 1 as regards the court’s independence and impartiality.   As regards the complaint that the applicants’ right of property had been infringed, the Court noted in both cases that the applicants’ ownership of the property in question had not been recognised by a final and irrevocable decision. It considered that they had not had a “possession” and accordingly declared the complaint inadmissible in the Canciovici case and held that there had been no violation of Article 1 of Protocol No. 1 in the Moşteanu case.   In the Moşteanu case, the Court awarded the four applicants jointly EUR 4,000 for non-pecuniary damage and EUR 710 for costs and expenses. In the Canciovici case, it awarded the three applicants jointly EUR 6,000 for non-pecuniary damage.   Section 4   (8)     Yakar v. Turkey (no. 36189/97)   Friendly settlement Mehmet Yakar was born in 1949 and lives in Ağrı. He is the father of Orhan Yakar (now deceased), who was 16 years old at the time of the events in question.   On 17 November 1996 the security forces arrested Orhan Yakar during a search for a Kurdistan Workers’ Party (PKK) member. Incident reports - not signed by Orhan - stated that he had been carrying a rifle and some ammunition, that he was arrested and subsequently transferred to the Interrogation Department at the Provincial Gendarmerie Command by helicopter.   On 18 November 1996 the gendarmes, accompanied by the applicant’s son, carried out a search to find the body of a terrorist. Orhan, who was walking in front of the gendarmes, stepped on a mine placed by the PKK and died.   In the meantime, the applicant was told that his son had joined the PKK and that he had surrendered to the security forces in Bingöl where he had been held in custody. The applicant went to Bingöl and was told by Bingöl Gendarmerie Command that his son, who had just surrendered to the security forces, had died after stepping on a mine.   In a letter of 22 November 1996 the Bingöl Gendarmerie Command informed the public prosecutor in Bingöl that the applicant’s son had been arrested on 17 November 1996, at 2.30 p.m., in the township of Sancak near the village of Karapınar and had been transferred to the Provincial Gendarmerie Command. During his interrogation Orhan had stated that he knew where the body of İhsan Meriç was hidden. Orhan had died after stepping on a mine while searching for the body.     The applicant filed unsuccessful petitions requesting that his son’s body be handed over to him and that he be given access to all information and documents concerning his son’s death.   Bingöl Provincial Administrative Council issued a decision, on 23   August 2000, stating that no prosecution should be brought against the members of the security forces. On 16 October 2000 the applicant filed an objection with Bingöl District Administrative Court.     The case is still pending.   The applicant complained, among other things, that his son was killed while in the custody of security forces. He further complained of the lack of any effective system for ensuring protection of the right to life in domestic law. He relied on Articles 2 (right to life), 3 (prohibition of inhuman treatment) concerning the authority’s failure to provide any satisfactory explanation for his son’s death, 5 (right to liberty and security), 13 (right to an effective remedy) and 6 § 1 (access to a court).   The case has been struck out following a friendly settlement in which EUR 40,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses. Turkey has, moreover, made the following declaration: “The Government regret the occurrence of individual cases of death resulting from the failure of the authorities to take the necessary measures to safeguard the lives of individuals as in the circumstances of the death of Orhan Yakar, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the failure of the authorities to protect the right to life of the applicant’s son in the instant case constituted a violation of Article 2 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is respected in the future. It is noted in this connection that new legal and administrative measures have been adopted, which have resulted in a reduction in the occurrence of deaths in circumstances similar to those of the instant application as well as more effective investigations. “...The Government consider that the supervision by the Committee of Ministers of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co-operation in this process will continue to take place.” (The judgment is available only in English.)   (9)     Kuray v. Turkey (no. 36971/97)   Friendly settlement Erkan Kuray is a Turkish national born in 1976.   The applicant was arrested on suspicion of having links to the PKK and was taken into police custody on 17 December 1996. He was placed in pre-trial detention on 28 December 1996 after being questioned by the public prosecutor. On 29 December 1997 the National Security Court sentenced him to twelve years and six months’ imprisonment for membership of an illegal organisation. He appealed on points of law against that judgment and subsequently applied for a retrial, but without success.   Relying on Article 5 § 3 (right to be brought promptly before a judge), the applicant complained of the length of his detention in police custody (eleven days).   The case has been struck out following a friendly settlement under which the applicant is to receive EUR 3,750 for damage and EUR 1,500 for costs and expenses.   (The judgment is available only in French.)   (10)     Keçeci v. Turkey (no. 38588/97)   Friendly settlement Bekir Sıtkı Keçeci is a Turkish national. On 26 January 1993 he was arrested by police officers from Ankara Police Headquarters on suspicion of being a member of an illegal organisation, the THKP-C (Turkish People’s Revolutionary Frontier Organisation). He was held in custody at the Ankara Security Directorate. His wife was also taken into custody the same day.   According to the applicant, the police officers, known as the C-2 squad of the Anti-Terror branch, beat and hit him on the head with a nailed stick, squeezed his testicles, kept him in a cold room and did not allow him to go to the toilet. Police officers also sexually harassed his wife and attempted to rape her in his presence.   Following a medical examination on 27 January 1993, a report was made noting scars of a brain operation on the applicant’s forehead, an 3cm-long abrasion on his head, a 1cm laceration over his right ear, a 2cm haematoma below his right eye and a 1cm ecchymosis and conjunctival hyperaemia on his right eyelid. It was concluded that the applicant’s injuries were not life-threatening but would prevent him working for four days. A further medical examination carried out on 30 January 1993, however, concluded that the applicant was in need of serious medical treatment.   On 8 February 1993 Ankara State Security Court ordered the applicant’s detention on remand.   On 20 July 1993 and again on 7 September 1993 the applicant filed a petition with Ankara State Security Court in which he alleged that he was severely tortured while in custody and that his wife was subjected to sexual harassment in his presence. On both occasions he claims he was able to identify the police officers responsible.   On 28 February 1995 Ankara Public Prosecutor charged 10 police officers under Article 243 of the Turkish Criminal Code with torturing the applicant.     On 13 March 1997 Ankara Assize Court acquitted the police officers on the ground that there was no evidence that the applicant had been tortured by the accused.   The applicant complained under Article 3 (prohibition of torture) that he was severely tortured while in police custody and, under Article 5 §§ 1 and 3 (right to liberty and security), that he was held in police custody for 10 days without being brought before a judge. He also complained, under Article 6 (right to a fair trial), that he was not tried by an independent and impartial tribunal.   The case has been struck out following a friendly settlement in which EUR 15,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses. Turkey has, moreover, made the following declaration:   “The Government regret the occurrence of individual cases of ill-treatment by the authorities of persons detained in custody, as in the case of the applicant, Mr Bekir Sıtkı Keçeci, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the recourse to ill-treatment, as in the circumstances of the present case, and the failure to conduct effective investigations constituted a violation of Article 3 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the prohibition of such actions – including the obligation to carry out effective investigations as required by Articles 3 and 13 is respected. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in, among other things, more effective investigations into cases of ill-treatment in circumstances similar to those of the instant application. “The Government consider that the supervision by the Committee of Ministers of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co-operation in this process will continue to take place.” (The judgment is available only in English.)   (11)     Konček v. Slovakia (no. 41263/98)   Friendly settlement Dušan Konček, a Slovakian national, complained, among other things, about unfairness and the length of proceedings concerning the decision to withhold his driving licence, and that   criminal charges against him - causing an accident while drunk driving - were not determined within a reasonable time. He relied on Articles 6 § 1 (right to a fair hearing within a reasonable time) and 13 (right to an effective remedy).   The case has been struck out following a friendly settlement in which 140,000 Slovakian korunas (SKK) is to be paid for any non-pecuniary and pecuniary damage, costs and expenses. (The judgment is available only in English.)   (12)     Varga v. Slovakia (no. 41384/98)   Friendly settlement Štefan Varga, a Slovakian national, complained, among other things, about the length of criminal proceedings against him on charges of theft and breach of domestic privacy and that he had no effective remedy. He relied on Articles 6 § 1 (right to a fair hearing within a reasonable time) and 13 (right to an effective remedy).   The case has been struck out following a friendly settlement in which SKK 130,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses. (The judgment is available only in English.)   ***   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 ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [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.