CEDH · PRESS;GENERAL;ENG — 6 février 2003

.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 } .s6A2099F1 { width:81.41pt; display:inline-block } .s6C288661 { width:129.47pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s4EE4BC2 { width:44.76pt; display:inline-block } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sC401B41E { width:77.45pt; 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 } .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 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     071   6.2.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Austria, Italy and Turkey   The European Court of Human Rights has today notified in writing the following five Chamber judgments, of which only the friendly-settlement judgment is final: [1]   Section 1   (1)     Gramiccia v. Italy (application no. 57636/00)   Friendly settlement Valeria and Anna Gramiccia, both Italian nationals, complained about their prolonged inability – through lack of police assistance – to recover possession of their apartment and about the duration of the eviction proceedings. They relied on Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights and Article   1 of Protocol No. 1 (protection of property).   The case has been struck out following a friendly settlement in which 4,085 euros (EUR) is to be paid to both applicants (EUR 2,042.50 to each applicant) for any non-pecuniary and pecuniary damage, costs and expenses. (The judgment is available only in English.)   Section 3   (2)     Jakupovic v. Austria (no. 36757/97)   Violation Article 8 Elvis Jakupovic, a national of Bosnia and Herzegovina, was born in 1979 and lived at the time of the events in Vöcklabruck (Austria). He now lives in Banova Jaruga (Croatia). In February 1991 he arrived in Austria to join his mother who was already living and working there. Subsequently his mother remarried and had two children. The applicant's family in Austria consists of his mother, his stepfather, a brother and two half sisters.   On 28 August 1995 the applicant was convicted of burglary and sentenced to five months imprisonment suspended for a probationary period of three years. On 28 September 1995 the Vöcklabruck District Administrative Authority issued a ten-year residence prohibition, finding that the applicant's further stay in Austria would be contrary to the public interest.   On 18 December 1995 the applicant was again convicted of burglary and sentenced to a further term of imprisonment suspended for a probationary period of three years. His different appeals against the residence prohibition were unsuccessful and on 30 September 1996 the Constitutional Court declined to deal with his case as it lacked prospects of success. On 9 April 1997 he was deported to Sarajevo.   The applicant complained that the residence prohibition imposed on him breached Article 8 (right to respect for private and family life).   The European Court of Human Rights considered that very weighty reasons had to be put forward to justify the expulsion of a young person (16 years old), alone, to a country which had recently experienced a period of armed conflict and when there was no evidence that he had close relatives living there.   The Court could not find that the applicant’s two convictions for burglary - even taking into account a further set of criminal proceedings which were discontinued after the victim had been compensated by the applicant - for which the Austrian courts had only imposed conditional sentences of imprisonment, could be considered particularly serious, as they did not involve violence. The only element which might indicate any tendency of the applicant towards violent behaviour was a prohibition to possess arms issued in May 1995. Although the seriousness of such a measure should not be underestimated, it could not be compared to a conviction for an act of violence, and there was no indication that such charges were ever   brought against the applicant.   Finding that the reasons put forward by the Austrian authorities in support of the necessity of the residence prohibition were not sufficiently weighty, the Court held, by 4 votes to 3, that there had been a violation of Article 8 and that the finding of a violation constituted in itself sufficient just satisfaction. It awarded the applicant EUR 7,936.09 for costs and expenses. (The judgment is available only in English.)   (3)     Zeynep Avcı v. Turkey (no. 37021/97)   Violation Article 5 §§ 1, 3 and 4 No violation Article 3 No violation Article 13 Zeynep Avcı is a Turkish national who was born in 1975. She was in Kocaeli Prison when her application was lodged.   The applicant maintained that she had been arrested by police in the province of İzmir (where a state of emergency had not been decreed) and taken into police custody on 25 November 1996. The record of interview which she signed states that she was arrested on 27 November 1996 in connection with a police investigation into the PKK. Before being transferred to Istanbul for questioning on 3 December 1996, the applicant was twice examined by doctors. No evidence of assault was found on either examination. Her period in police custody was extended until 18 December 1996, when an order was made for her to be detained pending trial. A further medical examination carried out on the same day did not reveal any evidence of assault or psychological disorder.   The applicant was prosecuted under Article 125 of the Criminal Code for attempting to undermine the indivisibility of the national territory. The first-instance proceedings are still pending.   On 26 May 1997 the applicant lodged a complaint alleging rape and torture by duty police officers when she was in police custody. On 5 August 1997 it was ruled that the police officers had no case to answer, there being insufficient evidence against them. The prosecutor indicated that the witness referred to in the complaint and whom he had questioned was not an eyewitness, that there was no evidence of any assault in the applicant’s medical records while she was in police custody and that the medical reports issued after she had lodged her complaint alleging rape did not enable the date on which intercourse had taken place to be established. On 17 September 1997 the President of the Assize Court dismissed an appeal by the applicant against that ruling.   Between March and October 1999 the applicant was examined by three psychiatrists, who issued a report stating that the applicant was suffering from post-traumatic stress disorder as a result of a rape in 1988.   Relying on Article 5 (right to liberty and security) of the Convention, the applicant complained that her detention in police custody had been both unlawful and excessively long and that she had had no means of obtaining a review of its lawfulness. Under Article 3 (prohibition of torture and inhuman or degrading treatment), the applicant submitted that she had been tortured and raped while in police custody. Lastly, she alleged a violation of Article   13 (right to an effective remedy) in that she had not had an effective remedy as regards her complaint of rape.   The European Court of Human Rights noted that the parties disagreed about the date on which the applicant had been taken into police custody. In view of the inadequacy of the evidence on this point, it did not consider it necessary to seek to clarify the matter. Even supposing that the applicant had been arrested on 27 November 1996, her period in police custody, which had ended on 18 December 1996, had lasted 21 days.   The Court noted that at the material time it had been possible for a person suspected of collective offences within the jurisdiction of the national security courts to be detained for 15 days where the suspect had been arrested in a region not subject to the state of emergency. That rule had applied in the province of İzmir. Consequently, the applicant should not have been held in police custody beyond the statutory maximum period of 15 days. However, she had been deprived of her liberty for the purposes of Article 5 § 1 (c) of the Convention for 21 days, without being brought before a judge. Accordingly, her detention had not been in accordance with the law. The Court further considered that such a lengthy period in police custody was incompatible with the notion of promptness as established in its case-law and was contrary to Article 5 § 3 of the Convention. Lastly, the Court noted that the judge who had ordered her detention pending trial had not intervened until 21 days after her arrest; a period of that length sat ill with the notion of “speedily” set forth in Article 5 § 4. The Court therefore held unanimously that there had been a violation of Article 5 §§ 1, 3 and 4 of the Convention.   As regards the applicant’s complaint under Article 3 of the Convention and her allegation of rape, the Court, like the Government, noted that she had not produced any evidence in support of her complaint. The medical reports issued while the applicant was in police custody had not found any evidence of assault and did not contain any findings capable of corroborating her allegations; the applicant, moreover, had never questioned the conditions in which the reports had been produced or their reliability, even when she had lodged her complaint alleging rape. She was now challenging them, but had not done so in her appeal against the ruling of 5 August 1997 that there was no case to answer, even though the case for the prosecution had largely rested on the reports’ findings. That led the Court to infer that the applicant’s attitude was hardly consistent with her account.   The Court acknowledged that it might be difficult for a person to obtain evidence of a rape allegedly committed while she was in police custody, particularly in view of her vulnerable position. In the present case it noted that, after lodging her complaint, the applicant had undergone two gynaecological examinations, which had not been able to establish the date on which intercourse had taken place. Furthermore, the public prosecutor could not be criticised for omitting to obtain psychological and behavioural evidence, since he had interviewed the applicant and the witness to whom she had referred in her complaint. The applicant had also been observed by three psychiatrists, who had concluded that she had psychological problems as a result of a rape that had occurred in 1988 and not in 1996. Despite being requested to do so by the Court, the applicant had not provided any explanation for that serious discrepancy. That being so, the Court considered that the evidence before it was not sufficient to substantiate the applicant’s allegations, and accordingly held that there had been no violation of Article 3 under that head.   As regards the conditions of the applicant’s detention in police custody, there was no evidence that she had brought them to the attention of the appropriate authorities with a view to improving the situation or triggering an investigation into the matter. She had undergone three medical examinations while in custody and had been transferred from the police headquarters in İzmir to those in Istanbul. In those circumstances, the Court was not satisfied that the conditions in which she was detained had attained the level of severity required by Article 3 of the Convention. Furthermore, having regard to its finding of a violation of Article   5, the Court was unable to discern any special circumstances that might justify a separate examination of this complaint.   As to the alleged violation of Article 13, after examining the various measures taken in the present case the Court concluded that it could not be maintained that the relevant authorities had remained passive when confronted with the rape allegation. The State could therefore be said to have conducted an effective criminal investigation. The Court accordingly held unanimously that there had been no violation of Article 13 of the Convention.   The Court awarded the applicant EUR 10,000 for non-pecuniary damage and EUR   3,000 for costs and expenses, less EUR 838 already paid by the Council of Europe in legal aid.   (The judgment is available only in French.)   (4)     Atça and Others v. Turkey (no. 41316/98)   Violation Article 6 § 1 (5)     Özdemir v. Turkey (no. 59659/00)   Atça and Others v. Turkey The applicants are thirteen Turkish nationals: Mehmet Atça, Şükrü Süsin, Faik Kaplan, Abdülkarim Aslan, Çetin Abay, Yusuf Başaran, Sadun Hamarat, Emin Hazer Adırbelli, Hüseyin Demir, Hasan Doğan, Şehmus Çüngü, Hasan Uras and Selahattin Genç. They were born in 1937, 1958, 1973, 1966, 1974, 1956, 1973, 1959, 1950, 1974, 1971, 1964 and 1968 respectively.   They were arrested and taken into police custody between 19 January and 3 February 1993 in connection with a police investigation into the PKK, an illegal armed organisation. They admitted to the police that they had taken part in PKK-sponsored acts. However, Mr Süsin, Mr   Atça, Mr Demir and Mr Abay later retracted their confessions before the public prosecutor at the Diyarbakır National Security Court. On different dates in February 1993 orders were made for the applicants to be detained pending trial.   Charges were brought against Mr Kaplan, Mr Adırbelli, Mr Abay, Mr Demir, Mr Atça and Mr Süsin under Article 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713) for being members of the PKK. Mr Genç, Mr Çüngü, Mr   Doğan, Mr   Başaran, Mr Hamarat, Mr Uras and Mr Aslan were prosecuted under Article 125 of the Criminal Code for high treason. With the exception of Mr Çüngü and Mr Genç, the applicants were released on 7 July 1993 and 3 February 1994.   In the National Security Court the applicants contested the charges and alleged that the statements that they had made while in police custody had been made under duress. On 14   November 1996 the National Security Court, composed of civilian judges and a military judge, found the applicants guilty as charged. It sentenced Mr Süsin, Mr Atça, Mr Demir and Mr Abay to twelve and a half years’ imprisonment for being members of an illegal armed organisation; Mr Adırbelli, Mr Kaplan, Mr Uras and Mr Başaran to three years and nine months’ imprisonment for aiding and abetting an illegal armed organisation; and Mr Genç, Mr Çüngü, Mr Doğan, Mr Hamarat and Mr Aslan to death, commuted to life imprisonment, for high treason undermining the integrity of the State.   Özdemir v. Turkey Tekin Özdemir is a Turkish national who was born in 1975. He is currently being held in Davutpaşa Prison.   The applicant was arrested and taken into police custody on 2 December 1995 on suspicion of being a member of the PKK, an illegal armed organisation, and of having taken part in a terrorist attack using a Molotov cocktail in which two people had been killed. While in police custody, he signed a statement admitting that he had carried out the attack. An order was made on 6 December 1995 for his detention pending trial. He was charged under Article 125 of the Criminal Code with separatism and undermining the integrity of the State. When questioned by the public prosecutor at the Istanbul National Security Court, he retracted the confession he had made to the police and maintained that he had signed it under duress.   On 25 June 1997 the Istanbul National Security Court, composed of civilian judges and a military judge, found the applicant guilty as charged and sentenced him to death. The sentence was commuted to life imprisonment. His conviction was upheld by the Court of Cassation on 2 December 1999. _____   Relying on Article 6 § 1 (right to a fair trial) of the Convention, the applicants in both cases maintained that the national security courts which had tried and convicted them were not independent and impartial courts, owing to the presence of a military judge on the bench. They also alleged that those courts had not guaranteed them a fair trial, as they had been denied access to a lawyer while in police custody.   The Court first noted that in the case of Atça and Others , Mr Atça, Mr Aslan, Mr Abay, Mr   Basaran, Mr Hamarat, Mr Dogan, Mr Çüngü, Mr Uras and Mr Genç had submitted that they had not had access to a lawyer while in police custody. However, the domestic authorities’ final decision on those complaints had been given on 11 March 1998. The Court therefore held that this part of the application had been lodged out of time and should be rejected.   As regards the independence and impartiality of the national security courts, the Court reiterated that certain aspects of the status of military judges made their independence and impartiality questionable; they were servicemen who still belonged to the army, which in turn took its orders from the executive. In the Court’s opinion, the fact that civilians accused of terrorist offences had to stand trial before a national security court whose members included a military judge constituted a legitimate reason for them to fear that that court might lack independence and impartiality. The Court concluded that the national security courts were not independent and impartial tribunals and held unanimously in both cases that there had been a violation of Article 6 § 1 on that account. Having regard to its finding of a violation, the Court held that it was not necessary to examine the complaints made in the Özdemir case and by Mr   Süsin, Mr Kaplan, Mr Adırbelli and Mr Demir in the case of Atça and Others that the proceedings had been unfair.   The Court held that the present judgments constituted in themselves sufficient just satisfaction for the non-pecuniary damage alleged. It awarded Mr Özdemir EUR 3,000 for costs and expenses. In Atça and Others , the Court awarded the applicants jointly EUR   14,000 for costs and expenses.   (The judgments are available only in French.)   ***   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.