CEDH · PRESS;GENERAL;ENG — 10 juillet 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 } .s763E0F55 { width:61.41pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sC0807AB4 { width:116.15pt; display:inline-block } .s5131C2D4 { width:117.48pt; display:inline-block } .s8C46F80C { width:262.92pt; display:inline-block } .s71EAD531 { width:200.14pt; display:inline-block } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sB506F85D { width:133.46pt; display:inline-block } .s73E9FC7D { width:453.6pt; display:inline-block } .sB2476B4D { width:76.79pt; 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     384   10.7.2003   Press release issued by the Registrar   Chamber judgments concerning Croatia, France, Greece, Italy and Turkey   The European Court of Human Rights has today notified in writing the following nine Chamber judgments, none of which is final. [1]   (1)     Kastelic v. Croatia (application no. 60533/00)   Violation Article 6 § 1   Lack of access to court   Tomaž Kastelic, a Slovenian citizen, was born in 1950 and lives in Ljubljana, Slovenia.   On 24 April 1992 his restaurant and adjacent house in Novigrad (Croatia) were destroyed in an explosion. On 1 June 1995 the court awarded him 1,911,000.24 Croatian kunas in compensation. On 17 January 1996 Parliament changed the relevant legislation so that actions for compensation for damage resulting from terrorist acts would be suspended until new legislation was passed. The Republic of Croatia successfully appealed against the judgment of 1 June 1995, whereupon the case was set down for a re-trial. On 9 February 1998 the Municipal Court decided to suspend the proceedings in accordance with the amended legislation. Mr Kastelic appealed unsuccessfully.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights, Mr Kastelic alleged that he had had no access to a court because he had been prevented from having his civil claim for damages determined. He also complained that the proceedings had exceeded the “reasonable time” requirement.   The European Court of Human Rights noted that, in the same circumstances, it had found a violation of the right of access in the Kutić v. Croatia case (1 March 2002). As the Croatian authorities had still not adopted any legislation on the issue, there was no reason to depart from its conclusion in that case. It accordingly held unanimously that there had been a violation of Article 6 § 1. It also held unanimously that no separate issue arose under that provision in respect of the length of the proceedings. It awarded the applicant 4,000 euros (EUR) for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in English.)   (2)     Multiplex v. Croatia (no. 58112/00)   Violation Article 6 § 1   Lack of access to court   The applicant company is registered in Banja Luka, which is situated in the present-day Republika Srpska (Bosnia and Herzegovina). It is owned by Mr Smail Smailagić, who lived in Banja Luka until 15 May 1992 when he fled to Croatia and went to live in Porat-Červar.   On 11 October 1993 the applicant company sued the Republic of Croatia for 15,600 German marks in damages for the requisition of one of its vehicles by the Croatian Military Police on 13 August 1992. During the course of the proceedings, on 6 November 1999, Parliament changed the relevant legislation so that all proceedings concerning claims for damage caused by members of the Croatian army or police, while acting in their official capacity, during the Homeland War in Croatia from 7   August 1990 to 30 June 1996 would be suspended. On 10   December 1999 the court suspended the proceedings in accordance with that amendment. The applicant company’s appeals were unsuccessful.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention, the applicant company alleged that it had had no access to a court because, following the enactment of legislation in 1999, it had been prevented from having its civil claim for damages determined. It also complained that the proceedings had exceeded the “reasonable time” requirement.   The Court noted that the proceedings had so far been suspended for over three years and seven months and that no new legislation had been passed that would have enabled the applicant company to have its civil claim determined. Accordingly, it held unanimously that there had been a violation of Article 6 § 1. It also held unanimously that no separate issue arose under that provision in respect of the length of the proceedings. It awarded the applicant company 4,000 euros (EUR) for non-pecuniary damage and EUR   500 for costs and expenses. (The judgment is available only in English.)   (3)     Benhebba v. France (no. 53441/99)   No violation Article 8   Temporary exclusion order   Benziane Benhebba is an Algerian national who was born in 1968 and lives in Algeria.   The applicant says that he arrived in France at the age of two and lived there with his parents and eight brothers and sisters. Between 1988 and 1994 he was convicted of a number of criminal offences, including burglary as part of a gang and robbery, and was given several suspended prison sentences.   In 1994 the applicant was arrested in a vehicle containing nearly two kilograms of cannabis. In a judgment of 18 January 1996 the Lyons Court of Appeal sentenced him to two years’ imprisonment for drugs offences and imposed a ten-year exclusion order on him. It based its decision, in particular, on the applicant’s persistent reoffending and on the seriousness of the offences. He appealed to the Court of Cassation, which found against him. He was likewise unsuccessful in applying to have the exclusion order lifted.   The applicant submitted that the exclusion order had infringed his right to respect for his private and family life, in breach of Article 8 of the Convention.   The Court reiterated that the removal of a person from a country where close members of his family were living could amount to interference with his right to respect for his family life. In the applicant’s case, the exclusion order had been based on the provisions of the French Criminal Code and had pursued the legitimate aims of “the prevention of disorder or crime”. In order to determine whether such interference had been “necessary in a democratic society”, the Court examined whether the exclusion order had struck a reasonable balance between the interests at stake.   The Court noted that the applicant had arrived in France at a very young age, had lived there for most of his life, had received all his education there and had worked there. In the absence of any information to substantiate the applicant’s claim that he had lived with a French woman as a couple, the Court decided to examine his application in the light of the ties he had developed with France and the principles it had established in previous similar cases.   As regards the seriousness of the offences committed by the applicant, the Court noted that the exclusion order had been made by the Lyons Court of Appeal both on the basis of the offences for which he had been prosecuted and in view of his previous convictions for robbery and the failure of measures to assist his reintegration into society. The Court of Appeal had inferred from the amount of cannabis found at the time of his arrest that his involvement in drugs offences could not have been merely occasional. In that connection, the Court reiterated that it understood why States showed great firmness with regard to those who actively contributed to the spread of the scourge of drugs. That approach, and the fact that within the space of eight years the applicant had been given prison sentences totalling six years, seven months and fifteen days, attested to the seriousness of the offences in question.   As regards the applicant’s links with France, the Court noted that he had formed most of his social ties there and no longer had any links with his country of origin other than his nationality. Although his family lived in France, the Court nonetheless reiterated that relations between adults were not necessarily covered by Article 8 of the Convention unless there was evidence of additional forms of dependency going beyond normal emotional ties.   In spite of the strength of the applicant’s ties with France, the Court considered that the temporary exclusion order imposed on him could legitimately be regarded as necessary for the prevention of disorder and crime. Having regard to the temporary nature of the measure and the seriousness of the offences committed, the Court considered that the measure complained of had been proportionate to the aims pursued. Accordingly, it held by five votes to two that there had been no violation of Article 8 of the Convention. (The judgment is available only in French.)   Violation Article 1 of Protocol No. 1 (4)     Efstathiou and Michailidis & Co. Motel Amerika v. Greece (no. 55794/00) (5)     Interoliva ABEE v. Greece (no. 58642/00)   (6)     Konstantopoulos AE and Others v. Greece (no. 58634/00)   Failure to pay full compensation for expropriation   Efstathiou and Michailidis & Co. Motel Amerika v. Greece The applicants are Anastasia Efstathiou, a Greek national who was born in 1930 and lives in Salonika, and a commercial partnership, Michailidis & Co. Motel Amerika, whose head office is in Pieria (northern Greece).   Interoliva ABEE v. Greece The applicant, Interoliva ABEE, is a public company whose head office is on the road between the towns of Katerini and Larissa.   Konstantopoulos AE and Others v. Greece The applicants, Konstantopoulos AE, Z. and Z. Makri & Co. and Tasos Th. Priskomatis AE, are public companies or commercial partnerships, each of which has its head office on the road between the towns of Katerini and Larissa.   In the above three Greek cases, the applicants owned property that was expropriated to make way for a road connecting the towns of Platamonas and Katerini to Pieria. In accordance with Law no. 653/1977, the authorities decided that the applicants were not entitled to compensation for all their property because they should be deemed to have benefited from the building of the road.   The applicants complained under Article 1 of Protocol No. 1 (protection of property) to the Convention that they had not been compensated in full for the expropriation of their property.   The Court referred to previous cases in which it had criticised the irrebuttable presumption that the benefit derived from road improvements amounted to sufficient compensation for a person whose property was expropriated. It noted that the civil courts that assessed the unit amount of compensation no longer had jurisdiction to determine whether owners derived benefit from roadworks. Consequently, owners who considered themselves to have been prejudiced were required to bring a further set of civil proceedings.   The Court considered that where an individual’s property had been expropriated, the ensuing proceedings should include an overall assessment of the consequences. It noted that although the presumption in question was no longer irrebuttable, there had been no significant improvement in the system for compensating people whose property had been expropriated. The presumption still existed and the courts that assessed awards of compensation did not take into account the nature of the work carried out or whether the owners benefited from it. Instead, the new system required owners who considered themselves to have been prejudiced by such work to make a fresh application to the civil courts in order to prove that their property had been adversely affected. Those proceedings might be lengthy and would take place in addition to the proceedings for the assessment of compensation, which themselves comprised three stages.   Furthermore, in the case of Efstathiou and Michailidis & Co. Motel Amerika v. Greece the Court found that it was contradictory to award special compensation for the depreciation in the value of the part of the land that had not been expropriated and yet to maintain, in accordance with the presumption, that the property had been enhanced by the roadworks.   In the light of the above considerations, the Court concluded that in maintaining a presumption that amounted to “self-compensation” and requiring the owners affected to bring several sets of proceedings in order to have the possibility of being awarded compensation commensurate with the value of the expropriated property, the authorities had upset the fair balance which had to be struck between the protection of individual rights and the requirements of the general interest. Accordingly, the Court held unanimously in all three cases that there had been a violation of Article 1 of Protocol No. 1 to the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court made a joint award of EUR   20,000 to the applicants in Efstathiou and Michailidis & Co. Motel Amerika v. Greece for pecuniary damage. (The judgments are available only in French.)   (7)     Conti v. Italy (no. 45356/99)     Violation Article 1 of Protocol No. 1 and Article 6 § 1   Length of eviction proceedings   Lorenza Conti, an Italian national born in 1966 and living in Florence, complained about her prolonged inability – through lack of police assistance – to recover possession of her apartment and about the duration of the eviction proceedings. She relied on Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention and Article 1 of Protocol No.   1 (protection of property).   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention and awarded the applicant 10,000 euros (EUR) for non-pecuniary damage and EUR 1,700 for costs and expenses. (The judgment is available only in English.)   Violation Article 5 § 1 (a) (8)     Grava v. Italy (no. 43522/98)   No violation Article 7 § 1   Lawfulness of detention   Gino Grava is an Italian national who was born in 1946 and lives in Resiutta (Udine).   In October 1991 the applicant was convicted in absentia of fraudulent bankruptcy and sentenced to six years’ imprisonment. After being arrested in Romania at the request of the Italian authorities, he was extradited to Italy on 3 June 1994 and detained pending trial. He was conditionally released on 16 September 1994, and on 6 October 1994 the Trieste Court of Appeal reduced his sentence to four years’ imprisonment. The applicant appealed on points of law to the Court of Cassation, which dismissed his appeal on 24 October 1995.   In May 1997 the applicant was arrested with a view to ensuring that he would serve various other criminal sentences imposed on him. He made several applications for remission of sentence under Presidential Decree no. 394 of 1990, but his applications were refused on the ground that he had been granted remissions of sentence in respect of other criminal convictions he had incurred.   On 14 August 1998 the applicant was released on licence, and on 1 December 1998 his application for remission of sentence was granted.   Relying on Article 5 (right to liberty and security) of the Convention, the applicant complained of the failure to grant him a remission of sentence before December 1998. He also alleged a violation of Article 13 (right to an effective remedy) and Article 7 § 1 (no punishment without law) of the Convention.   The Court noted that by the date on which he was released the applicant had already served a sentence amounting to two years, two months and four days. He had therefore still had one year, nine months and twenty-six days of his sentence remaining – in other words, less than the maximum period of remission he had been granted (two years). Consequently, the sentence he had served had been two months and four days longer than the one imposed on him minus the remission he had been granted.   The Court noted that once the requirements for the application of Presidential Decree no. 394 of 1990 were satisfied, the Italian judicial authorities were bound to apply the statutory provisions on remission of sentences. In the present case the applicant had been granted a remission of sentence after being released, by which time he had already served a sentence that was longer than the one than the one he should have served. The Court considered that this additional period of imprisonment could not be regarded as a period of lawful detention within the meaning of the Convention and accordingly held unanimously that there had been a violation of Article 5 § 1 (a).   As regards the applicant’s other complaints, the Court held in the first place that it was not necessary to examine separately his allegation of a violation of Article 13. Concerning his complaint alleging a violation of Article 7 § 1, the Court noted that the sentence imposed on the applicant had not exceeded the statutory maximum he could have faced. It further considered that the remission of sentence related to the execution of the sentence and not to the sentence itself within the meaning of Article 7 § 1. Accordingly, the Court held unanimously that there had been no violation of that provision.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 8,000 for non-pecuniary damage. (The judgment is available only in French.)   (9)     Yurtdaş and İnci v. Turkey (no. 40999/98)   Violation Article 6 § 1   Independence and impartiality of National Security Court   Ali Rıza Yurtdaş and Mehmet İnci are Turkish nationals born in 1945 and 1976 respectively. Mr Yurtdaş is currently serving a sentence in Burdur Prison.   On 20 February 1996 the applicants were arrested by the anti-terrorist branch of the Antalya security police and taken into police custody. On 27 February 1996 they were brought before a judge and placed in pre-trial detention. On 17 December 1996 both applicants were convicted by the İzmir National Security Court. Mr Yurtdaş was sentenced to 12 years and 6 months’ imprisonment for membership of an illegal organisation, the PKK (Workers’ Party of Kurdistan), and Mr İnci to 3 years and 9 months’ imprisonment for aiding and abetting that organisation.   Relying on Article 6 (right to a fair trial) of the Convention, the applicants submitted that their 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. They further complained that they had not had access to legal assistance while in police custody and that their confessions had been obtained under duress.   The Court, which had already examined a large number of applications raising the same legal issue as the present one, found that there had been a violation of Article 6 § 1. It considered that civilians standing trial for offences under the Criminal Code had legitimate reason to fear that a national security court which included a military judge among its members might not be independent and impartial. The Court accordingly held unanimously that there had been a violation of Article 6 § 1 on that account.   The Court   further reiterated that a court whose lack of independence and impartiality had been established could not under any circumstances guarantee a fair trial to persons subject to its jurisdiction. It therefore held that it was not necessary to examine the complaint concerning the fairness of the proceedings.   The Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. It also awarded them jointly EUR 2,000 for costs and expenses, less EUR 630 already paid in legal aid. (The judgment is 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)   Joanna Reynell (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.