CEDH · PRESS;GENERAL;ENG — 5 décembre 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4CDFA04C { width:86.76pt; display:inline-block } .s66324ECF { width:76.76pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s12873424 { width:40.77pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     620   5.12.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Turkey and Germany     The European Court of Human Rights has today notified in writing the following three Chamber judgments, of which only the Demir v. Turkey and Hoppe v. Germany judgments are final: [1]   Section 1   (1)     Demir v. Turkey (application no. 22280/93)   Friendly settlement Mahmut Demir is a Turkish national, born in 1961. At the material time he was living with his family in Tepecik.   On 17 December 1992 an armed group belonging to the PKK executed a village guard working for the State after ambushing the minibus in which he had been travelling. Soldiers, accompanied by village guards, stormed the village of Tepecik on 19 December 1992. They threw four grenades into the applicant’s family home, killing his two nieces and seriously wounding his father.   The villagers, including the applicant, who had lost their home and possessions had to leave the village. They were not allowed to bury their relatives at the village: their bodies were taken to Diyarbakır where they were buried. Moreover, although a criminal investigation appeared to have been started in connection with these events, the Court did not have any information about the outcome.   The applicant complained, in particular, of the death of his two nieces and the serious injuries inflicted on his father during the military operation carried out in their village. He also complained of the lack of an effective investigation. He relied on Articles 2 (right to life), 3   (prohibition of torture or inhuman and degrading treatment), 5 (right to liberty and security), 6 (right to a fair hearing), 8 (right to private and family life), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 18 (limitation on use of restrictions on rights) of the European Convention on Human Rights. He also claimed to have suffered a breach of his right to peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 (protection of property) owing to the destruction of his father’s house by members of the security forces.   The case has been struck out following a friendly settlement under which the applicant is to receive GBP 116,000 (EUR 184,140.95) for damage and for costs and expenses. In addition, the Turkish Government has made the following declaration:   “The Government regret the occurrence of individual cases of death, as in the case of Misses Dilek and Dilan Demir, and of grievous injury, as in the case of Mr Yusuf Demir, resulting from the unjustified and disproportionate use of force, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions.   “It is accepted that the occurrence of deaths and of grievous injury in the present case and the inadequate investigations that followed constituted a violation of Articles 2 and 13 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 as required by these Articles – 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 death in circumstances similar to those of the instant application.   “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 French.)   Section 3   (2)     Dalkılıç v. Turkey (no.25756/94)   Violation Article 5 §§ 3, 4 and 5 Sevil Dalkılıç is a Turkish lawyer. She was born in 1960 and is currently imprisoned in Kışehir Prison. At the material time she was a member of the Human Rights Association and the People’s Social Democratic Party (SHP).   The applicant was arrested by the police on 2 March 1994 on suspicion of having assisted an illegal armed group, namely the PKK. She was held in police custody until 17 March 1994, when she was brought before a judge who ordered her to be placed in pre-trial detention. On 7 February 1995 she was sentenced to 30 years’ imprisonment by the National Security Court under legal provisions relating to the prevention of the formation of armed groups capable of committing crimes against the State and public authorities and violent acts with explosives and illegal weapons.   Relying on Article 5 §§ 3, 4 and 5 (right to liberty and security), the applicant complained that she had not been brought “promptly” before a judge after her arrest, that she had had no remedy by which to challenge her detention in police custody and that she had been unable to seek compensation for the excessive length of her detention in police custody.   The Court accepted that the investigation of terrorist offences undoubtedly presented the authorities with special problems, but that did not mean that they had carte blanche to arrest suspects and take them into police custody, free from all judicial scrutiny, whenever they asserted that there had been a terrorist offence. In the present case the applicant had been held in police custody for 15 days. Even supposing that there had been a link between her activities and a terrorist threat, such a lengthy period was incompatible with the concept of promptness as set out in the Court’s case-law. The Court accordingly held unanimously that there had been a violation of Article 5 § 3 of the Convention.   The Court’s case-law was also authority for the finding that in proceedings before national security courts there was no adequate and effective means of challenging the compatibility of detention in police custody with the requirements of the Convention. Consequently, the Court concluded unanimously that there had been a violation of Article 5 § 4 of the Convention.   Lastly, the Court noted that, according to the Turkish legislation applicable at the material time, the maximum length of detention in police custody in connection with proceedings in national security courts was 15 days in the case of collective offences. A compensation claim grounded on detention for such a period would have had no prospects of success in the domestic courts. The Court accordingly held unanimously that there had been a violation of Article 5 § 5 of the Convention and awarded the applicant EUR 5,500 for non-pecuniary damage and EUR 1,500 for costs and expenses.   (The judgment is available only in French.)   (3)     Hoppe v. Germany (no. 28422/95)   No violation Articles 8, 6 § 1 and 14 Peter Hoppe is a German national, born in 1957 and living in Herne.   In April 1990 a daughter, Svenja, was born to the applicant and his wife and in December 1992 the applicant and his wife separated. Svenja stayed with her mother who instituted divorce proceedings against her husband.   On 19 October 1994 Wuppertal District Court, following two hearings, decided that the applicant was entitled to see Svenja every second Saturday as well as St Stephens day, Easter Monday and Whit Monday. All the experts heard in the proceedings gave evidence that four-year-old Svenja was exposed to a conflict of loyalty and that she could not cope with the situation. The applicant was incapable of accepting restrictions on access and did not show concern for the child’s psychological health. Svenja’s mother had not yet managed to give Svenja such a feeling of security as to permit her to visit the applicant without feelings of fear. Svenja therefore needed the intervals of two weeks as times of rest in her mother’s home. The applicant appealed.   On 9 March 1995 Düsseldorf Court of Appeal increased the applicant’s right of access by ruling that every first visiting weekend a month the applicant was entitled to see Svenja from Saturday morning until Sunday evening. The remainder of his appeal was dismissed. The court found that, as long as there was no agreement between the parents, any visit was an emotional strain for the child. The applicant’s right of access had therefore to be assessed in the context of the continuing conflict between the parents.   The applicant referred the case to the Federal Constitutional Court, which considered that the applicant’s complaint did not raise any issue of fundamental importance. The applicant’s visiting rights were later extended to every weekend.   On 24 October 1994 Wuppertal District Court granted the divorce and gave Svenja’s mother parental authority, as being in Svenja’s best interests. She educated and looked after her daughter in an atmosphere of love and understanding and took an intense interest in ensuring her well-being. Svenja needed a stable life without being torn between different apartments and different styles of education. The Court noted that the applicant failed to see that his wishes obstructed Svenja’s psychological development.   The applicant appealed unsuccessfully to the Court of Appeal, which had considered that an oral hearing with the parties was not necessary, the relevant facts being clear from the case-file. The Federal Constitutional Court also refused to entertain the applicant’s constitutional complaint as not raising any issue of fundamental importance.   The applicant alleged, in particular, that the German courts’ decisions concerning his right of access to his daughter and the awarding of parental authority breached his right to respect for his family life, that he was denied a fair hearing in the relevant proceedings and that he had been subjected to discrimination. He relied on Articles 6 (right to a fair hearing), 8 (right to respect for private and family life) and 14 (prohibition of discrimination).   Concerning Article 8, the European Court of Human Rights found that the domestic courts carefully considered the questions of access and of awarding parental authority. The District Court relied on expert reports and on the evidence given by the parents at hearings and was thus in a better position than the European judges to strike a fair balance between the competing interests involved. Furthermore, the District Court judgments were upheld by the Court of Appeal. The Court was therefore satisfied that when reducing the applicant’s rights of access and awarding parental authority to the child’s mother, the national authorities acted within the margin of appreciation afforded to them in such matters.   The Court further noted, in particular in the first-instance proceedings, that the applicant, assisted by counsel, had the opportunity to present his arguments in writing and orally. The Court was satisfied that no hearing before the Court of Appeal appeared necessary, however.   The Court further considered that the case was decided with special diligence, as required in cases concerning a person’s relationship with his or her child, in view of the risk that the passage of time might result in a de facto determination of the matter. The Court was therefore satisfied that the procedural requirements implicit in Article 8 were complied with and that the applicant was involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests. Accordingly, the Court held unanimously that there had been no violation of Article 8.   Concerning Article 6 § 1, the Court noted that hearings had been held at first instance and that Wuppertal District Court took into account various expert opinions. The main question raised before Düsseldorf Court of Appeal concerned the strained relations between the parents and the child’s well-being. A hearing would not have added anything of relevance to the matters the Court of Appeal had to decide. The appeal lodged by the applicant did not raise any questions of fact or law which could not be resolved adequately on the basis of the various elements at the disposal of the Court of Appeal.   The Court further noted that the applicant was legally represented throughout the proceedings and had ample opportunity to submit arguments as he saw fit.     Accordingly, viewing the domestic judicial proceedings as a whole, the Court held, unanimously, that there had been no violation of Article 6 § 1 regarding the alleged unfairness of the proceedings and the lack of an oral hearing before Düsseldorf Court of Appeal.   Finding nothing to substantiate the allegation that the German courts, in requiring a common proposal of the parents to be granted the joint exercise of parental authority, discriminated against one of the divorced spouses, the Court held, unanimously, that there had been no breach of Article 14, taken together with Article 8. (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.