CEDH · PRESS;GENERAL;ENG — 22 avril 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .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 } .sF0A293BD { width:123.48pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s574B5D73 { width:22.58pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sA5DAD651 { width:0.56pt; display:inline-block } .sE1794090 { width:13.92pt; display:inline-block } .s77CFA7C4 { margin-top:0pt; margin-left:324pt; margin-bottom:0pt; text-align:right } .sBD45696 { margin-top:0pt; margin-left:216pt; margin-bottom:0pt; text-indent:36pt; text-align:right } .s6123F51 { width:26.59pt; display:inline-block } .sFF03F648 { width:4.49pt; display:inline-block } .sBEEF6FF3 { width:53.42pt; display:inline-block } .s32B93E28 { margin-top:0pt; margin-bottom:5pt } .s9B49264A { margin-top:5pt; margin-bottom:5pt } .s9AE6264A { margin-top:5pt; margin-bottom:0pt } .sC862A378 { width:355.56pt; display:inline-block } .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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   205 22.4.2004   Press release issued by the Registrar   Chamber judgments concerning Austria, Bulgaria, Greece, Italy, and Turkey   The European Court of Human Rights has today notified in writing the following 12 Chamber judgments, of which only the friendly-settlement judgment is final. [1]   Radovanovic v. Austria (no. 42703/98)   Violation of Article 8 The applicant, Jovo Radovanovic, is a Serbia and Montenegro national, born in Vienna in 1979 and currently living in Serbia and Montenegro.   He was born in Austria where he lived for the first seven months of his life with his parents, who are both Serbia and Montenegro nationals and legally resident in Vienna. He then moved to live with his grandparents in the former Federal Republic of Yugoslavia, now Serbia and Montenegro, where he completed primary school. He spent his annual school holidays with his parents in Austria and, when he was 10, came back to live with them and his sister in Austria, where he finished secondary school and completed a three-year vocational training as a butcher. On 5   May 1993, he received an unlimited residence permit ( unbefristeter Sichtvermerk ).   On 30   July 1997 Vienna Juvenile Court ( Jugendgerichtshof ) convicted the applicant of aggravated robbery and burglary and sentenced him to 30 months’ imprisonment, with 24 months suspended with a probationary period of three years. When fixing the sentence, the court considered as mitigating circumstances that the applicant had had no criminal record, that he had admitted the offences and had partly made amends ( Schadensgutmachung ), and that in two cases the offences remained attempts.   On 30 September 1997 a residence prohibition of unlimited duration was issued against the applicant, in accordance with Section 18   §§   1 and 2   (1) of the 1992 Aliens Act ( Fremdengesetz ), under which a residence prohibition is to be issued against an alien, if he has been sentenced to more than three months’ imprisonment by final judgment of a domestic court.   The applicant served his prison sentence until 14 October 1997. Subsequently he was transferred to a detention centre with a view to his expulsion. His various appeals were unsuccessful and, on 4   February 1998, he was expelled to the former Federal Republic of Yugoslavia.   The applicant complained that the residence prohibition of unlimited duration against him was in breach of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.   Without disregarding the serious nature of the applicant’s offences, the European Court of Human Rights Court noted that he had committed them as a juvenile, that he had had no previous criminal record and that the major part of his relatively high sentence was suspended. The Court was not therefore convinced that the applicant constituted a serious danger to public order which necessitated the imposition of the measure concerned.   Given the applicant’s birth in Austria, where he later also completed his secondary education and vocational training, while living with his family, and also taking into account that his family had been legally resident in Austria for a long time and that the applicant himself had had an unlimited residence permit when he committed the offence, and considering that, after the death of his grandparents in Serbia and Montenegro, he no longer had any relatives there, the Court found that his family and social ties with Austria were much stronger than with Serbia and Montenegro.   The Court therefore considered that the imposition of a residence prohibition of unlimited duration was an overly rigorous measure. A less intrusive measure, such as a residence prohibition of a limited duration, would have sufficed. The Court concluded that the Austrian authorities, by imposing a residence prohibtion of unlimited duration against the applicant, had not struck a fair balance between the interests involved and that the means employed were disproportionate to the aim pursued. The Court therefore held, unanimously, that there had been a violation of Article 8. The Court also held, unanimously, that the question of just satisfaction was not ready for decision. (The judgment is available only in English.)   Angelov v. Bulgaria (no. 44076/98)       Violation of Article 1 of Protocol No. 1 The applicant, Georgi Argirov Angelov, was a Bulgarian national, born in 1911, who used to live in Markovo in the region of Plovdiv. After his death in 2003 the Court gave his widow and two daughters leave to pursue the present proceedings.   In 1975 the applicant was sentenced to five years’ imprisonment for the murder of two members of the Resistance movement in 1943. He was released in 1978 after serving his sentence. Considering that his conviction had been a repressive measure on the part of the Communist regime, the applicant asked the Supreme Court to reopen the case. The court found that the offence had been time-barred when criminal proceedings were brought against the applicant and set the conviction aside.   On 25 March 1996 the Plovdiv Regional Court awarded Mr Angelov compensation which he received on 30 July 1998. Between 1996 and 1998 Bulgaria underwent a period of substantial inflation and monetary depreciation.   Relying on Article 1 of Protocol No. 1 (protection of property), the applicant complained of the time taken by the authorities to enforce the judicial decision that had been given in his favour. In his submission, the delay had led to a reduction in value of the amount owed to him and had thus infringed his right to the peaceful enjoyment of his possessions.   The Court noted that, by failing to comply with the Plovdiv Court’s judgment, the authorities in question had deprived the applicant for nearly two years of the compensation that had been awarded him and that he could reasonably have expected to receive. That delay coupled with the lack of any clear response to the numerous steps taken by the applicant had had the effect of putting him in a position of uncertainty.   Owing to high inflation and to the depreciation in the national currency during that period, the value of the applicant’s debt had decreased without any default interest to offset the loss. Thus the depreciation of the debt had been exacerbated by the delay in enforcing it. In those circumstances the Court concluded, unanimously, that there had been a breach of Article 1 of Protocol No. 1 to the Convention and awarded Mr Angelov EUR   3,500 for pecuniary and non-pecuniary damage and EUR   1,500 for costs and expenses. (The judgment is available only in French.)   Nastou v. Greece (no. 51356/99)             Just satisfaction The case concerned a dispute over land situated in the suburbs of Athens, known as the "Karras estate", which the State expropriated in 1973 in order to build a school. The seven applicants, who are Greek nationals, claimed to be owners of an area covering more than 90,000 m2 of that land.   In its Chamber judgment of 16 January 2003 the Court had held that there had been a breach of Article 1 of Protocol No. 1 (protection of property) and Article 6 § 1 (right to a hearing within a reasonable time). It had held that the failure to award any sum in compensation for the expropriation of the applicants’ property had upset the fair balance that had to be struck between the protection of property and the requirements of the general interest, and that the applicants’ case had not been heard within a reasonable time. The Court had reserved the question of the application of Article 41 (just satisfaction), which had not been ready for decision.   In the judgment on just satisfaction delivered today the Court decided unanimously to award the applicants jointly EUR   450,000 for pecuniary damage, EUR   22,500 for non-pecuniary damage and EUR   10,000 for costs and expenses. (The judgment is available only in French.)   Cianetti v. Italy (no. 55634/00)           Violation of Article 6 § 1 The applicant, Alessandro Cianetti, is an Italian national who was born in 1936 and lives in Petrignano di Assisi (Perugia, Italy).   In 1991 he was the president of a commission formed at Perugia University to assess candidates for posts as administrative assistants. He and three other members of the commission were prosecuted for abuse of public office and forgery on suspicion of having favoured a particular candidate.   At the request of the prosecution service, the Perugia court chamber that examined the precautionary measures ( tribunale della libertà e del riesame ) decided to suspend the applicant from his duties for two months. On 4 December 1995 the Perugia Court sentenced him to one year and eight months’ imprisonment. On appeal the applicant was acquitted of the offence of forgery and of a number of counts of misuse of public office. His sentence was reduced to six months on an appeal to the Court of Cassation.   Relying on Article 6 § 1 (right to a fair trial), the applicant submitted that three judges who had sat on the Perugia Court bench had not been impartial because they had previously examined the appropriateness of the measure suspending him from his duties and that two of them had also ruled in separate criminal proceedings in which he had been involved and related to similar offences.   Regarding the personal impartiality of the judges challenged by the applicant, the Court noted that there was no suggestion that the judges had been prejudiced or biased. However, it considered that the facts of which the applicant complained could have caused him to doubt their objective impartiality.   In deciding to adopt precautionary measures the judges concerned had summarily assessed the available data in order to ascertain whether at first sight the prosecution had grounds for their suspicion and had not ascertained whether the evidence produced sufficed to secure a conviction. However, the terms used in the orders in question could suggest that there had been sufficient evidence to conclude that an offence had been committed. Subsequently the same judges had ruled on the issue of the applicant’s guilt. The applicant’s fears as to their impartiality could therefore be regarded as objectively justified.   The appeal proceedings had not cured the flaws that had occurred at first instance. Accordingly, the Court held, by six votes to one, that there had been a breach of Article 6 § 1 and awarded the applicant EUR   5,000 for non-pecuniary damage and EUR   4,500 for costs and expenses. (The judgment is available only in French.)                 Violation of Article 1 of Protocol No. 1 Violation of Article 8 Violation of Article 2 of Protocol No. 4 Neroni v. Italy (no. 7503/02)             Violation of Article 13 The applicant, Federico Neroni, is an Italian national who was born in 1950 and lives in Acquaviva Picena. He was declared bankrupt in May 1984.   The applicant alleged that, following the declaration of bankruptcy, he had been deprived of his possessions contrary to Article 1 of Protocol No. 1 (protection of property), that correspondence sent to him had been given to the receiver contrary to Article 8 (right to respect for correspondence) and that he had been unable to leave his place of residence contrary to Article 2 of Protocol No. 4 (freedom of movement). Relying on Article 6 § 1 (right to a hearing within a reasonable time) and Article 13 (right to an effective remedy), the applicant complained of the length of the bankruptcy proceedings and the lack of an effective remedy under Italian law by which to complain of the duration of the ineligibilities incurred as a result of being made bankrupt. Lastly, he submitted that the loss of his right to vote following his bankruptcy had infringed Article 3 of Protocol No. 1 (right to free elections).   The Court reiterated that it had previously examined applications raising similar questions to this case and had held that there had been a breach of the Convention It noted in the present case that the length of the bankruptcy proceedings, which had lasted approximately 19 years and six months, had upset the fair balance which should be struck between the general interest in repaying a bankrupt’s creditors and the applicant’s individual interests, namely respect for the peaceful enjoyment of his possessions and correspondence and his freedom of movement. The interference with his rights and freedoms had been disproportionate to the aim pursued. Accordingly, the Court held, unanimously, that there had been a breach of Article 1 of Protocol No. 1, Article 8 and Article 2 of Protocol No. 4.   In the light of that conclusion, the Court held that the applicant’s complaints had been arguable and that he had therefore been entitled to an effective domestic remedy within the meaning of Article 13 of the Convention. In the Court’s view, the possibility under domestic law of applying to set aside a declaration of bankruptcy did not constitute an effective remedy by which to complain of the prolonged duration of the ineligibilities affecting a bankrupt’s personal and economic rights, having regard in particular to the 15-day time-limit for lodging an application. Accordingly, the Court concluded, unanimously, that there had been a breach of Article 13.   The Court declared the complaint about the length of the proceedings inadmissible for non-exhaustion of domestic remedies. It also considered that the complaint under Article 3 of Protocol No. 1 was out of time and therefore inadmissible.   Under Article 41 (just satisfaction) the Court awarded Mr Neroni EUR   40,000 for non-pecuniary damage. (The judgment is available only in French.)   Lucilla Petrini v. Italy (nos. 66292/01 and 66299/01)             Friendly settlement The applicant, Lucilla Petrini, is an Italian national who was born in 1929 and lives in Rome. She complained about her prolonged inability - through lack of police assistance - to recover possession of her flats and about the duration of the eviction proceedings. She relied on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No.   1 (protection of property).   The case has been struck out following a friendly settlement in which EUR 10,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses.   The European Court of Human Rights accepted the settlement, having observed that it had already specified the nature and extent of the Italian Government’s obligations in cases concerning the eviction of tenants and that the question of the fulfilment of those obligations was pending before the Council of Europe’s executive body, the Committee of Ministers.   (The judgment is available only in English.)     Violation of Article 5 §§ 3 and 4 Sarıkaya v. Turkey (no. 36115/97)   No violation of Article 6 §§ 1 and 3 (c) The applicant, Mehmet Nesih Sarıkaya, is a Turkish national of Kurdish origin born in 1971.   During a police operation against the PKK (Workers’ Party of Kurdistan), proscribed as a terrorist organisation under Turkish law, the applicant was arrested and taken into police custody on 7 September 1996. On 27 September 1996 he was taken before a judge, who ordered his detention pending trial. The applicant was prosecuted on charges of separatism and undermining the integrity of the State, and was sentenced to death by the Erzurum National Security Court, the sentence later being commuted to life imprisonment. The Court of Cassation upheld that judgement on 23 August 1999.   Relying on Article 5 §§ 3 and 4 (right to liberty and security), the applicant complained of the length of his detention in police custody and the lack of a domestic remedy whereby he could contest its unlawfulness. In addition, relying on Article 6 §§ 1 and 3 (c) (right to a fair trial), taken separately or in conjunction with Article 14 (prohibition of discrimination), he complained that he had not been able to contact his lawyer while in police custody or before the investigating judge.   The Court noted that Mr Sarıkaya had remained in police custody for 20 days. Even supposing that the activities he was accused of had any link with a terrorist threat, the Court could not accept that it was necessary to hold him for more than 20 days without judicial intervention. It therefore held unanimously that there had been a violation of Article 5 § 3.   As to the complaint that the applicant could not challenge the lawfulness of his detention in police custody, the Court observed that, irrespective of whether the judge who ordered his detention pending trial had ruled on the question, the judge’s order had been made only after 20 days had elapsed, a period which sat ill with the notion “speedily”. Moreover, it was apparent from the Court’s case-law that in Turkish law there was no appropriate and effective remedy whereby a person held in police custody could challenge the compatibility of his detention with the requirements of the Convention. The Court therefore concluded unanimously that there had been a violation of Article 5 § 4 of the Convention. As regards the complaint concerning the unfairness of the proceedings, the Court examined this under Article 6 §§ 1 and 3 (c). it noted from the file that the applicant had had the opportunity to discuss the veracity of the statements and evidence obtained while he was in police custody. He had been represented by a lawyer who had helped him to prepare his defence, even though he had not been willing to rely fully and entirely on his assistance. Although the applicant had not been able to consult a lawyer as soon as he was taken into police custody, the Court considered that the fairness of the proceedings had not been impaired in substance and that the defendant’s rights had not been irreparably prejudiced in a manner incompatible with the guarantees of Article   6. It accordingly held unanimously that there had been no violation of Article 6 §§1 and 3 (c).   Under Article 41 of the Convention (just satisfaction), the Court awarded Mr Sarıkaya EUR   7,500 for pecuniary and non-pecuniary damage and EUR   2,000 for costs and expenses. (The judgment is available only in French.)   Violation of Article 1 of Protocol No. 1 Yazgan v. Turkey (no. 49657/99) Yazganoğlu and Others v. Turkey (no. 50915/99)   Yazgan v. Turkey   The applicants, Faik and Melahat Yazgan, are Turkish nationals who were born in 1930 and 1929 respectively and live in Istanbul. They owned a plot of land at Yenibosna (Istanbul) which the State expropriated in 1995 with a view to the construction of a school. Disagreeing with the amount of the compensation for expropriation, the applicants took their case to the Turkish courts. The Court of Cassation awarded them additional compensation which was paid to them in February 1999.   Yazganoğlu and Others v. Turkey The applicants, Rukiye Feride Yazganoğlu, Esma Yazganoğlu, Mukaddes Fikriye Yazganoğlu and Fatih Yazganoğlu, are Turkish nationals who were born in 1979, 1983, 1958 and 1980 respectively and live in Izmir. They owned a plot of land at Işıklar (Izmir) which the State expropriated in 1991. Challenging the amount of the compensation paid to them, the applicants took their case to the Turkish courts. The Court of Cassation awarded them additional compensation which the administrative authorities paid to them in December 1998.   In the two above Turkish cases the applicants complained of an infringement of their right to peaceful enjoyment of their possessions on account of the delay by the administrative authorities in paying them the additional compensation for expropriation awarded to them by the courts. They relied on Article 1 of Protocol No. 1 (protection of property).   The Court observed that it had already found violations of the Convention in earlier cases raising similar issues to those of the present case. It noted that the delays in paying the additional compensation for expropriation were imputable, in both cases, to the administrative authorities and had caused the applicants to suffer prejudice distinct from the expropriation of their possessions. On account of these delays they had suffered an individual and excessive burden which had upset the fair balance that should obtain between the requirements of the general interest and protection of the right to peaceful enjoyment of possessions. Consequently, the Court held unanimously, in both cases, that there had been violations of Article 1 of Protocol No. 1.   In the case of Yazganoğlu and Others the Court awarded the applicants jointly EUR   3,000 for pecuniary damage and EUR   1,200 for costs and expenses; in the Yazgan case it awarded the applicants EUR   6,500 for pecuniary damage and EUR 1,500 for costs and expenses. (These judgments are available only in French.)   Violation of Article 6 § 1 In the three Turkish cases below the applicants were brought before a national security court and sentenced to terms of imprisonment for membership of, or providing aid and assistance to, illegal armed organisations. Relying on Article 6 § 1 (right to a fair trial), they submitted that their case had not been heard by an independent and impartial tribunal because one of the members of a national security court was always a military judge. In the cases of Özer and Others v. Turkey and Yavuzaslan v. Turkey , the applicants further complained that they had not been assisted by a lawyer while in police custody.   Haydar Güneş v. Turkey (no. 46272/99) The applicant, Haydar Güneş, is a Turkish National who was born in 1965. As a member of an illegal organisation, the TDKP (Revolutionary Communist Party of Turkey), he was sentenced in 1997 to 30 years’ imprisonment.   Özer and Others v. Turkey (no. 48059/99) The applicants, Kazım Özer and Hüseyin Kayacı, Turkish nationals who were born in 1976 and 1969 respectively, used to live in Bergama (Izmir). Mr Kayacı died in 2001 after going on hunger strike while serving his sentence in Buca Prison. The Court then authorised his heirs, namely his parents and sister, to pursue the present proceedings. In 1998 the applicants were both sentenced to 12 years and six months’ imprisonment for membership of an illegal organisation, the MLKP (Marxist-Leninist Communist Party).   Yavuzaslan v. Turkey (no. 53586/99) The applicant, Murat Yavuzaslan, is a Turkish National who was born in 1972 and lives in Denizli. In 1996 he was sentenced to three years and nine months’ imprisonment for membership of an illegal armed organisation, the TDKP (Revolutionary Communist Party of Turkey).   The Court reiterated that when civilians had to answer criminal charges in a national security court one of whose members was a military judge they had a legitimate reason to fear that the court would not be independent and impartial. It accordingly held unanimously in each of these cases that there had been a violation of Article 6 § 1 of the Convention.   As regards the applicants’ other complaints relating to the unfairness of the proceedings in the cases of Özer and Others and Yavuzaslan , the Court reiterated that a court which had been shown not to be independent or impartial could not, in any event, guarantee a fair trial to those whose cases were brought before it; the Court accordingly considered that it was not necessary to examine those complaints.   With regard to the application of Article 41 of the Convention (just satisfaction), the Court held unanimously, in each of the above cases, that the judgment in itself constituted sufficient just satisfaction for the non-pecuniary damage alleged by the applicants, with the exception of Mr Kayacı’s heirs, to whom it awarded EUR   3,000. The Court observed that, when it held that an applicant had been found guilty by a court which was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress was in principle a speedy retrial before an independent and impartial court. In the cases of Haydar Güneş and Yavuzaslan the Court awarded the applicants EUR   2,000 for costs and expenses, less the EUR   660 already received by Mr Yavuzaslan from the Council of Europe in legal aid. In the case of Özer and Others , the Court awarded jointly to Mr Özer and Mr Kayacı’s heirs EUR   3,000 for costs and expenses, less the EUR   630 they had already received from the Council of Europe in legal aid. (These 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. [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.