CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 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 } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s8ABE6CD5 { width:98.77pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s18D73244 { width:148.81pt; display:inline-block } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .s76CF415B { page-break-before:always; clear:both } .s21410711 { width:27.48pt; display:inline-block } .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     639   12.12.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Germany and Turkey   The European Court of Human Rights has today notified in writing the following six Chamber judgments, of which only the friendly-settlement judgments are final. [1] (These six judgments are available only in French.).   Section 3   (1)     Çallı v. Turkey (application no. 26543/95)   Friendly settlement Derdi Çallı is a Turkish national who was born in 1944 and lives in Istanbul.   On 30 March 1990 land owned by the applicant in Kartal was expropriated by the Major-Roads Department ( Karayolları Genel Müdürlüğü ) and compensation of 130,534,160 Turkish liras (TRL) paid. The applicant applied to the Court of First Instance on 30   December 1991 and was awarded additional compensation of TRL 403,500,000. That sum was not paid until July 1996, after the applicant had issued enforcement proceedings against the authorities following a decision of the Court of Cassation dismissing their appeal.   The applicant complained under Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights of an interference with his right to the peaceful enjoyment of his possessions.   The case has been struck out following a friendly settlement under which the applicant is to receive 70,000 euros (EUR) for the damage sustained and for costs and expenses.   (2)     Adalı v. Turkey (no. 31137/96)   Friendly settlements (3)     Şaziment Yalçın v. Turkey (no. 31152/96) (4)     Soğukpınar v. Turkey (no. 31153/96) (5)     Filiyet Şen v. Turkey (no. 31154/96)   The applicants, Hüsniye Adalı, Şaziment Yalçın, Mehmet Soğukpınar and Filiyet Şen, are Turkish nationals born in 1949, 1940, 1934 and 1961 respectively. They all live in Istanbul. The applications related to the death of the sons of Mrs Adalı, Mrs Yalçın and Mr   Soğukpınar and the death of Mrs Şen’s husband, all four of whom were killed in an attempt by Turkish police to arrest them. On 7 October 1988 İsmail Hakkı Adalı, Fevzi Yalçın, Kemal Soğukpınar and Refa Şen were shot dead at Tuzla (Istanbul) following an exchange of fire with members of the security forces who had been instructed to arrest them. Under Articles 448, 281 and 463 of the Criminal Code, the Public Prosecutor of Kartal issued proceedings against 16 police officers who had taken part in the operation, accusing them of causing the death of the four men. The applicants joined the proceedings as “intervening parties” on 17 January 1989. They alleged that in using lethal force the police officers had exceeded their powers.   On 6 February 1995 the Assize Court acquitted the police officers on the ground that they had used legitimate force when attempting to arrest the men. The court based its decision on the depositions of the police officers present at the scene, the record of the investigation, an autopsy report and reports by expert witnesses. It further noted that two firearms had been found in the vehicle along with publications concerning the activities of an illegal extreme left-wing organisation. It found that the police officers had shot the suspects in accordance with the provisions of the Law on the Functions and Powers of the Police (Polis vazife ve selahiyet yasası) and dismissed the applicants’ allegations that the police officers had opened fire on the suspects from short range and without issuing a warning. In a judgment of 17   October 1995 the Court of Cassation dismissed an appeal by İsmail Hakkı Adalı’s mother, Fevzi Yalçın’s mother, Kemal Soğukpınar’s father and the public prosecutor.   The applicants complained under Article 2 (right to life) that the men had been intentionally killed by the use of unnecessary and illegal force.   The cases have been struck out following friendly settlements under which Mrs Adalı, Mrs   Yalçın and Mr Soğukpınar are each to receive 55,000 pounds sterling (GBP) and Mrs   Şen GBP 70,000 for the damage sustained and for costs and expenses.   The Turkish Government have, moreover, made the following declarations:   “The Government regret the occurrence of individual cases of death resulting from the use of unjustified force as in the circumstances of [ İsmail Hakkı Adalı’s Fevzi Yalçın’s, Kemal Soğukpınar’s and Refa Şen’s] death , notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the use of such force as claimed in the instant case constitutes 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 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.”   (6)     Wittek v. Germany (no. 37290/97)   No violation Article 1 of Protocol No. 1 Sabine and Harro Wittek are two German nationals who were born in 1958 and 1948 respectively and live at Bad Münder (Germany).   In May 1986 they bought a house in Leipzig, in the German Democratic Republic (GDR), for 56,000 GDR marks. The house had been built on land belonging to the State ( volkseignes Grundstück ) over which they acquired a life interest ( dingliches Nutzungsrecht ) by virtue of Articles 287 et seq. of the Civil Code ( Zivilgesetzbuch ).   The applicants stated that the Internal Affairs Department of Leipzig City Council ( Abteilung innere Angelegenheiten des Stadtbezirks ) had informed them that if they wished to leave the GDR for good they had to transfer the property by sale or by gift. On 8 December 1989 they made an official gift in notarial form to a couple, although in reality the latter paid them 55,000 German marks (DEM) into a Swiss bank account. The applicants alleged that the house and land were now worth DEM 600,000, which the Government denied as the applicants possessed only a life interest in the land.   After German reunification the applicants sought to recover the house and the life interest directly from the purchasers. They subsequently brought an action in the civil courts. The Federal Court of Justice ( Bundgerichtshof ) ruled that the dispute came within the jurisdiction of the administrative courts as the Law of 23 September 1990 on the Resolution of Outstanding Property Issues – Law of Property ( Gesetz zur Regelung offener Vermögensfragen – Vermögensgesetz ) was applicable. That law provides former citizens of the GDR with a right to restitution of their land if they were forced to transfer it in order to be permitted to leave the country legally.   The applicants brought proceedings in the administrative courts. The Federal Administrative Court ( Bundesverwaltungsgericht ) found that the conditions set out in section 1 (3) of the Law of Property were not satisfied, as the applicants had been under no obligation to make the gift in order to leave the GDR following the reopening of the border on 9 November 1989, and had not shown that they had been induced to make the transfer by deception or unfair practices. By two decisions of 22 January 1997 the Federal Constitutional Court ( Bundesverfassungsgericht ) dismissed the applicants’ appeals against the decisions of the civil and administrative courts.   The applicants complained under Article 1 of Protocol No. 1 (protection of property) that the refusal of the German courts to order the return of their property in the former GDR constituted an interference with their right to the peaceful enjoyment of their possessions.   The Court noted that the Federal Court of Justice had ruled that the transfer of the applicants’ property at the time of the GDR was null and void. As the applicants could not subsequently rely on their right to restitution before the German courts, the Court considered that there had been an interference with their right to peaceful enjoyment of their possessions and that this interference had been based on the provisions of the Law of Property. As that Law was designed to resolve property disputes following German reunification by seeking to establish a socially-acceptable balance between diverging interests, the Court held that the interference had pursued an aim that was in the general interest. With regard to the issue whether that interference had been proportionate, the Court noted that Leipzig Administrative Court had concluded that there had not been any unfair practices in the present case within the meaning of section 1(3) of the Law of Property. The applicants had indeed transferred their property nearly one month after the border had been reopened and had therefore been able to leave their country freely without being obliged to transfer it. The Court found that analysis by the German Administrative Court to be well-founded, even if the period between the reopening of the border on 9 November 1989 and German reunification on 3 October 1990 had been marked by much uncertainty, in particular as far as legal matters were concerned.   Furthermore, the applicants had only had a life interest in the land, so would not have been able to retain title to it even if they had moved within the GDR. Lastly, the Court noted above all that they had purchased the house for 56,000 GDR marks in May 1986 and that in December 1989 the purchasers of the property had paid them DEM   55,000, which was the equivalent at the material time of 220,000 GDR marks for transactions between private individuals. Accordingly, even if the value of the property had since increased, the applicants could not be deemed to have had to bear a “disproportionate burden”.   Having regard to the above factors and to the exceptional circumstances of German reunification, the Court found that Germany had not exceeded its margin of appreciation and that, given the legitimate objective, had not failed to strike a “fair balance” between the interests of the applicants and the general interest of German society. Consequently, the Court held unanimously that there had not been a violation of Article 1 of Protocol No. 1.   ***   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.