CEDH · PRESS;GENERAL;ENG — 13 novembre 2003

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Croatia (no. 66485/01)   Violation Article 2 of Protocol No. 4 The applicant, Dragan Napijalo, is a Croatian national who was born in 1947 and lives in Karlovac (Croatia).   On 2 March 1999 the applicant was fined by the customs authorities at a border checkpoint for failing to declare goods on entering Croatia. He maintains that a customs officer confiscated his passport because he was unable to pay the fine immediately. According to the Croatian Government, the applicant refused to pay the fine refused to pay the fine and drove away demonstratively, leaving his passport behind. Shortly afterwards, the applicant wrote to the customs authorities requesting the return of his passport. He received a reply in which the authorities stated that his passport had been seized in accordance with the law.   On 2 March 1999 the applicant brought a civil action in the Zagreb Municipal Court against the Ministry of Finance, seeking the return of his passport and an award of damages on account of his resultant inability to leave Croatia. He also applied for an interim measures to ensure the immediate return of his passport. His action was dismissed on 10 September 2002. Alongside those proceedings, the applicant applied to the Zagreb County Court but was again unsuccessful. In the meantime, his passport was returned to him on 4 April 2001.   The applicant complained under Article 6 § 1 (right a hearing within a reasonable time) of the length of the civil proceedings for the recovery of his passport. He also maintained that the confiscation of his passport had resulted in an infringement of his freedom of movement as guaranteed by Article 2 of Protocol No. 4.   The Court noted that the proceedings brought by the applicant had lasted three years, six months and eight days and considered that their length did not comply with the “reasonable time” requirement in Article 6 § 1 of the Convention. It accordingly held unanimously that there had been a violation of Article 6 § 1.   The Court observed that the customs authorities had stated in their letter to the applicant that the seizure of his passport had been in accordance with the law. In doing so, they had admitted having seized the passport, and the Croatian Government’s assertion that no seizure had taken place had to be rejected.   The customs authorities, which had been in possession of the applicant’s passport, had not returned it to him but had sent it to the Slunj Police Department, which had subsequently forwarded it to the Zagreb Police Department, where it had remained for two years before being sent to the Karlovac Police Department. The reasons for not returning the passport to the applicant were unclear, as no proceedings had been instituted against him for any customs offence.   As he had been denied the use of his identification document, the applicant had been unable to leave the country. The restrictions thus imposed on his freedom of movement had amounted to interference with the right afforded to him by Article 2 of Protocol No. 4. The Court could not find any justification for the customs authorities’ refusal to return the applicant’s passport or for the Zagreb Municipal Court’s refusal of his application for an interim measure, both of which decisions had prolonged the seizure of his passport and the interference with his right to freedom of movement. The interference had not proportionate to the aims pursued and had not been a measure “necessary in a democratic society”. The Court accordingly held unanimously that there had been a violation of Article 2 of Protocol No. 4.   Under Article 41 (just satisfaction), the Court awarded the applicant 2,000 euros (EUR) for non-pecuniary damage. (The judgment is available only in English.)     Rachdad v. France (no. 71846/01)   Violation Article 6 §§ 1 and 3 (d) The applicant, Abdelfettah Rachdad, is a Moroccan national who was born in 1963 and is currently subject to a compulsory residence order in Bordeaux.   In December 1991, and subsequently in November and December 1992, the Reims Criminal Court, giving judgment in the applicant’s absence, found him guilty of aiding and abetting the unlawful importation of drugs, possessing and selling drugs, and aiding and abetting the buying, transporting and importing of drugs. The court sentenced him to five years’ imprisonment for each of the offences.   In January 1998 the applicant applied to have those judgments set aside and requested an examination of the witnesses on whose evidence he had been convicted. The Criminal Court refused his request and upheld the convictions. On appeal, the Court of Appeal ordered a fresh hearing and summoned the six witnesses concerned. However, only one of them gave evidence, the others having failed to comply with their summonses.   On the basis of witness statements obtained during the police and judicial investigations in respect of two of the charges against the applicant, the Court of Appeal upheld his conviction. In a judgment of 2 December 1998 it altered his sentence to six years’ imprisonment and also made an order permanently excluding him from French territory.   The applicant complained under Article 6 §§ 1 and 3 (d) (right to a fair hearing) that he had been convicted solely on the evidence of witnesses whom he had been unable to examine or have examined at any stage of the proceedings.   The Court noted that, in respect of two of the charges against him, the applicant had been convicted solely on the evidence of witnesses whom he had been unable to examine or have examined at any stage of the proceedings. Admittedly, the courts in question had considered his application to set aside seven years after the events, so that there had probably been some difficulty in ascertaining the whereabouts of the witnesses, and the applicant had possibly contributed to that difficulty by failing to comply with court summonses and thus causing the courts to convict him in his absence. However, in view of the special importance of ensuring the rights of the defence in criminal proceedings, and the fact that the safeguards in Article 6 were equally valid whether the trial court was dealing with a case brought before it or with an application to set aside a judgment it had previously given, that factor could not be regarded as decisive.   The Court accordingly held unanimously that there had been a violation of Article 6 §§ 1 and 3 (d). It considered that the present judgment constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained and awarded the applicant EUR 5,470 for costs and expenses. (The judgment is available only in French.)   Katsaros v. Greece (no. 51473/99)   Article 41 (just satisfaction) The applicant, Epameinondas Katsaros, is a Greek national who was born in 1929 and lives in Salonika. He owned land that was expropriated in 1984 to make way for a school. Although the Greek courts ruled that the expropriation order had been rescinded, the applicant was unable to recover enjoyment of the land. In 2001 it was re-expropriated.   On 6 June 2002 the European Court of Human Rights held there had been a violation of Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property) and reserved the question of just satisfaction.   Under Article 41 (just satisfaction), the applicant claimed EUR 3,147,547 for pecuniary damage, EUR 146,735 for non-pecuniary damage and an award for costs and expenses.   The Court unanimously decided to award the applicant EUR 200,000 for pecuniary damage, EUR 10,000 for non-pecuniary damage and EUR 9,733 for costs and expenses. (The judgment is available only in French.)   Violation Article 1 of Protocol No. 1 Violation Article 6 § 1 In the following two Italian cases the applicants complained about their prolonged inability – owing to lack of assistance from the police or a bailiff – to recover possession of their apartments and about the duration of the eviction proceedings. They relied on Article 6 § 1 of the Convention (right to a fair hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property).     Pecuniary damage Non-pecuniary damage Costs and expenses D’Aloe v. Italy (no.61667/00) 27,600    7,746.84 3,000 Scalera v. Italy (no. 56924/00) 87,800 3,000 8,000   In both cases the Court held unanimously that there had been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. It awarded the applicants the amounts indicated above, in euros, for non-pecuniary and pecuniary damage and for costs and expenses. ( D’Aloe v. Italy is available only in French and Scalera v. Italy is available only in English.)   Violation Article 6 § 1 In the following three Turkish cases the applicants were tried by a national security court and given prison sentences for being members of or having aided and abetted illegal armed organisations. Relying on Article 6 § 1 (right to a fair hearing), they complained that they had not been tried by an independent and impartial tribunal, as a military judge had sat as a member of the national security court. They also complained that the proceedings that had resulted in their conviction had been unfair and that there had been various other violations of Article 6 of the Convention. In addition, Mr Yavuz complained of the length of the proceedings against him (four years and four months).   Al and Others v. Turkey (no. 59234)   The applicants, Eren Al, Embiya Karakuş and Mesut Kaynak, are Turkish nationals who live in İzmir. Mr Al and Mr Karakuş were both born in 1979 and Mr Kaynak in 1974. They were accused of having chanted separatist slogans in favour of the PKK and were given prison sentences for disseminating separatist propaganda. Their sentences were commuted to suspended fines.   İsmail Güneş v. Turkey (no. 53968/00)   İsmail Güneş is a Turkish journalist who was born in 1965 and lives in St Gall (Switzerland). He was sentenced to twelve and a half years’ imprisonment for belonging to the PKK.   Kenan Yavuz v. Turkey (no. 52661/99)   Kenan Yavuz is a Turkish national who was born in 1963 and lives in Antalya. He was arrested on 28 February 1994 on suspicion of belonging to the PKK. In May 1997, while the proceedings against him were still pending, he was released. On 18 June 1998 the National Security Court found him guilty as charged and sentenced him to three years and nine months’ imprisonment. His conviction and sentence were upheld by the Court of Cassation on 8 March 1999.   The Court reiterated 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. Accordingly, the Court held unanimously in all three cases that there had been a violation of Article 6 § 1 of the Convention.   The Court also 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 considered unanimously in the cases of Al and Others v. Turkey and İsmail Güneş v. Turkey and by 6 votes to 1 in the case of Kenan Yavuz v. Turkey that it was not necessary to examine the other complaints concerning the fairness of the proceedings.   As regards the complaint concerning the length of proceedings in the case of Kenan Yavuz v. Turkey , the Court considered, having regard to the overall length of the proceedings, that there had been no violation of Article 6 § 1.   Under Article 41 (just satisfaction) of the Convention, the Court held unanimously in all three cases that the judgments in themselves constituted sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It considered that in cases in which applicants had been convicted by a court that was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress would in principle be for them to be retried by an independent and impartial court at an early date. In the case of Al and Others v. Turkey the Court awarded the applicants jointly EUR 2,500 for costs and expenses. In the case of İsmail Güneş v. Turkey it awarded the applicant EUR 1,500 for costs and expenses, and in Kenan Yavuz v. Turkey it awarded the applicant EUR 1,272 under that head. (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 Press 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 by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. 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.