CEDH · PRESS;GENERAL;ENG — 27 novembre 2003

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s48F8B750 { font-size:8pt; display:none } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s13945EDD { width:72.79pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s23A41E03 { width:36pt; display:inline-block } .s913F377E { width:252.91pt; display:inline-block } .s75A32C27 { border-collapse:collapse } .s8DD1D08A { vertical-align:top } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .s40E856DB { width:343.57pt; display:inline-block } .sC35E1C88 { width:65.39pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; 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 [Note1]     606   27.11.2003   Press release issued by the Registrar   Chamber judgments concerning France, Italy, Poland and Turkey   The European Court of Human Rights has today notified in writing the following 13 Chamber judgments, of which only the friendly-settlement judgments are final. [1] [Note2]   Slimane-Kaïd v. France (no. 2) (no. 48943/99)   Violations Article 6 § 1 Mohamed Slimane-Kaïd is a French national who was born in 1941 and lives in Elancourt.   The applicant was chairman and managing director of companies suspected by the customs authorities of having produced false statements and forged invoices in order to qualify for the preferential treatment reserved for transactions abroad. A customs investigation was started in January 1984 and a judicial investigation in respect of a person or persons unknown was opened on 7 August 1985. On 20 February 1997 the applicant was found guilty of illegally exporting and importing prohibited goods and was sentenced to three months’ imprisonment, suspended, among other penalties. He appealed on points of law to the Court of Cassation, which dismissed his appeal on 26 November 1998.   The applicant complained that he had not had a fair hearing in the Court of Cassation and that the length of the proceedings against him had been excessive. He relied on Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights.   Referring to its case-law, the European Court of Human Rights reiterated that the failure to send a copy of the reporting judge’s report to the applicant or his counsel before the hearing, whereas the advocate-general had been given a copy of the document, created an imbalance which was incompatible with the requirements of a fair hearing. It considered that the fact that a copy of the draft judgment had been sent only to the advocate-general and not to the applicant or his counsel raised a fortiori the same issue.   The applicant further complained that the reporting judge had taken part in the deliberations and that the advocate-general had also been present. As the reporting judge was a member of the court hearing the appeal and did not express his opinion on the case in public, the Court considered that his participation in the deliberations did not raise an issue under Article 6 § 1 of the Convention. The advocate-general, who, conversely, was not a member of the court hearing the appeal, usually attended the deliberations but did not take part in the debate. In the Court’s opinion, his mere presence at the Court of Cassation’s deliberations was incompatible with Article 6 § 1 of the Convention.   The Court unanimously held that there had been a violation of Article 6 § 1 on account of the failure to communicate the reporting judge’s report and the draft judgment to the applicant or his counsel before the hearing, whereas the advocate-general had been sent a copy of those documents, and on account of the advocate-general’s presence at the deliberations.   As regards the complaint concerning the excessive length of the proceedings in issue, the Court considered that they could be regarded as having started on the date when the judicial investigation in respect of a person or persons unknown had been opened, and had ended when the Court of Cassation had given judgment. They had therefore lasted 13 years, three months and 19 days. As their length did not satisfy the “reasonable time” requirement, the Court unanimously held that there had been a violation of Article 6   § 1 of the Convention. (The judgment is available only in French.)     Violation Article 6 § 1   Violation Article 1 of Protocol No. 1 In the following two Italian cases the applicants complained that they had been unable to recover possession of their apartments over an extended period, owing to a lack of police assistance. They also complained of the length of the eviction proceedings. They relied on Article 6 § 1 (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 Nicolai v. Italy (no. 62848/00) - 3,000 - Petrini v. Italy (no. 63543/00) 5,000 6,000 3,680   The Court held unanimously in both cases that there had been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention. It awarded the applicants the amounts indicated above, in euros, for non-pecuniary and pecuniary damage and for costs and expenses.       Friendly settlement In the following two Italian cases the applicants complained that they had been unable to recover possession of their apartments over an extended period, owing to a lack of police assistance. They also complained of the length of the eviction proceedings. They relied on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property).   Della Rocca v. Italy (no. 59452/00) Istituto Nazionale Case Srl v. Italy (no. 2) (no. 41932/98, 41935/98 and 42732/98) The cases have been struck out following friendly settlements in which Mrs   Della Rocca is to receive 5,085 euros (EUR) and the Istituto Nazionale Case Srl company an overall award of EUR 10,755. (The judgments are available only in English.)   Shamsa v. Poland (nos. 45355/99 and 45357/99)   Violation Article 5 § 1 Abdelsalam Shamsa and his brother Anwar Shamsa are Libyan nationals resident in Warsaw.   In May 1997 the applicants were arrested in Warsaw without valid identity papers or residence permits. On 28 May 1997 an order was made for their deportation, to be enforced within 90 days at the most, and they were taken into custody pending execution of the order. From 24   August 1997, the last day of the period fixed by law for their expulsion, the authorities made three attempts to deport the applicants, first via Prague and later via Cairo and Tunis. These attempts were unsuccessful, mainly because the applicants refused to leave willingly.   On their return from Prague on 25 August 1997 the applicants were deemed persons whose presence in Polish territory was undesirable. Between the attempts to deport them they were detained by the border police ( Straż Graniczna ) at Warsaw Airport, where they remained until 3 October 1997, on which date they left the hospital where they had been taken without any police move to prevent them. The applicants lodged a complaint concerning their detention between 25 August and 3 October 1997, but the related proceedings were discontinued.   The applicants submitted that they had been unlawfully detained at Warsaw Airport by the border police, in breach of Article 5   §   1 of the Convention (right to liberty and security).   While they were being held in the transit zone the applicants, who were constantly under the surveillance of the border police, did not have freedom of movement and had to remain at the disposal of the authorities. Consequently, their detention in the transit zone had amounted to a deprivation of liberty.   Polish law required a deportation order to be enforced within 90 days, failing which the person concerned had to be released. In the present case the applicants should have been released on 25 August 1997. However, the authorities had continued to try to enforce the deportation order without any legal basis even though the statutory time-limit had expired. The Court noted that there was no domestic decision or provision which laid down the conditions for such detention. Accordingly, Polish legislation did not fulfil the requirement of “foreseeability” for the purposes of Article 5 § 1.   Moreover, detaining someone in the transit zone for an indefinite and unforeseeable period without any basis in the form of a specific legal provision or valid judicial decision was in itself contrary to the principle of legal certainty, which was implicit in the Convention and was one of the fundamental elements of the rule of law. The Court also pointed out that detention for several days which has not been ordered by a court or judge or any other person authorised to exercise judicial power cannot be regarded as “lawful” within the meaning of Article 5 § 1 of the Convention.   Considering that the detention was neither in accordance with a procedure prescribed by law nor lawful, the Court held unanimously that there had been a violation of Article 5 § 1. It awarded each applicant EUR 4,000 for non-pecuniary damage and both of them jointly EUR   3,000 for costs and expenses. (The judgment is available only in French.) Violation Article 8 No violation Article 5 § 1 Worwa v. Poland (no. 26624/95) The applicant, Władysława Worwa, is a Polish national who was born in 1947 and lives in Rdzawka.   A dispute with some of her neighbours about a right of way led to a number of court cases against the applicant and her children. During the proceedings in one of the cases Nowy Targ District Court ordered the applicant to undergo a psychiatric examination to determine whether she had been in full possession of her mental faculties at the material time. After she had failed to comply with a number of summonses to attend, the court ordered her arrest.   On 12 October 1994 police officers went to the applicant’s home and arrested her. The circumstances of her arrest were the subject of disagreement between the parties. Mrs   Worwa asserted that her ten-year-old daughter had been present at the time of her arrest, had been torn from the applicant’s hands by a police officer and had been left alone at home unsupervised. Mrs Worwa further asserted that she had been refused permission to contact her family or her doctor. The Polish Government asserted that the report on the arrest made no mention of the presence of a child and that if a child had been present measures would have been taken to ensure that she was taken care of.   In connection with other criminal proceedings against her the applicant was summoned on several occasions to undergo psychiatric examinations. She was found guilty of inciting her children to insult and throw stones at her neighbour and of threatening her with physical violence.   The applicant submitted that her arrest had breached Article 5 § 1 (b) (right to liberty and security). In addition, relying on Article 8 (right to respect for private and family life) she complained of the circumstances of her arrest and an abuse of the law on account of the repeated orders for psychiatric reports.   As there was no evidence in the file that the applicant’s arrest had not been lawful, the Court considered that her detention had complied with Article 5 § 1 (b) of the Convention and held unanimously that there had been no violation of that provision.   As regards the applicant’s complaint regarding her right to respect for her family life, the only evidence available to the Court was the report drawn up at the time of her arrest. She had signed it, stating that she intended to complain about the circumstances of her arrest but did not wish to send word to a friend or relative. She had not subsequently challenged the content of that declaration. That being so, the Court considered that there was no evidence that the child had been present in the house and accordingly held unanimously that there had been no violation of Article 8 in this respect.   As regards the applicant’s complaint regarding her right to respect for her private life, the Court found that the circumstances in which the psychiatric reports had been ordered constituted interference in her private life. The judicial authorities of the same district court had repeatedly summoned her to take psychiatric tests at short intervals. In such circumstances the fair balance to be maintained between an individual’s right to respect for his or her private life and the proper administration of justice had not been preserved. Consequently, the Court considered that the public authorities’ interference with the applicant’s right to respect for her private life had not been justified and held unanimously that there had been a violation of Article 8 in that respect.   Violation Article 6 § 1 In the following six 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.   Can v. Turkey (no. 38389/97) The applicant, Mahmut Can, is a Turkish national born in 1973. At the time of lodging his application he was living in Bitlis. He was sentenced to three years and nine months’ imprisonment for aiding and abetting an illegal organisation, namely the PKK (Workers’ Party of Kurdistan).   Günel v. Turkey (no. 47296/99) The applicant, Tunay Günel, is a Turkish national born in 1977. At the time of lodging his application he was in Karaman Prison (Turkey). He was sentenced to 12 years and six months’ imprisonment for membership of an illegal organisation, namely the TKP/ML-TIKKO (Turkish Communist Party/Marxist-Leninist – Turkish Workers and Peasants’ Liberation Army).   Kirman v. Turkey (no. 48263/99) The applicant, Nesrin Kirman, is a Turkish national born in 1976. At the time of lodging her application she was living in Ankara. She was convicted of aiding and abetting the TKP/ML-TIKKO and sentenced to three years and nine months’ imprisonment.   Özülkü v. Turkey (no. 51289/99) The applicant, Ercan Özülkü, is a Turkish national born in 1968. At the time of lodging his application he was living in Istanbul and was a member of the municipal police force. He was sentenced to three years and nine months’ imprisonment for aiding and abetting an illegal organisation, the DHKP/C (Revolutionary People’s Liberation Party/Front).   Tuncel and Others v. Turkey (no. 42738/98) The applicants, Metin Tuncel, Şükrü Topkan, Kudbettin Çimen and Ahmet Yavuz, are Turkish nationals born in 1965, 1954, 1968 and 1960 respectively. At the time of lodging their application Metin Tuncel and Şükrü Topkan were in Aydın Prison, and Kudbettin Çimen and Ahmet Yavuz were living in Antalya. The applicants were prosecuted for belonging to and aiding and abetting the PKK. Mr Tuncel was sentenced to 22 years and six months’ imprisonment and Mr Topkan to 12 years and six months’ imprisonment. Mr Çimen and Mr   Yavuz were each sentenced to three years and nine months’ imprisonment.   Uçar and Others v. Turkey (no. 55951/00) The applicants, Cahit Uçar, Cihangir Aslan and Erdinç Aslan, are Turkish nationals born in 1975, 1974 and 1979 respectively. Mr Uçar was sentenced to 12 years and six months’ imprisonment, Cihangir Aslan to three years and nine months’ imprisonment and Erdinç Aslan to two years and six months’ imprisonment.   The Court declared each of the applications admissible, with the exception of the complaints by Cihangir Aslan and Erdinç Aslan and those concerning the fairness of the proceedings in the case of Uçar and Others v. Turkey , all of which had been lodged out of time.   As to the merits of the applicants’ allegations, 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 six 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 held unanimously that it was not necessary to examine the other complaints concerning the fairness of the proceedings.   As to the application of Article 41 (just satisfaction) of the Convention, the Court held unanimously in all six 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 it had found that 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. The Court awarded Mr Uçar EUR 1,500 for costs and expenses. In each of the other cases, the Court awarded the applicants EUR 2,000 for costs and expenses, less the amounts already received in legal aid. (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. [Note1]   Press release for grouped judgments . To be saved in PowerDocs as follows: (1) Document Name: [case name +] [day +] month[s] + year + language [+ case names] (e.g. January 2003E (Bloggs, Durand + Dupont) or 12-14 February 2003E (Finland + France) or Reina 31012003E ), (2)   Document type: PR, (3) Group: PRESS, (4) Subject: JCH or JGC . [Note2]   If you keep this sentence, do not forget to remove the corresponding sentence for each individual case.