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Pressemitteilung
 Der Kanzler des Europäischen Gerichtshofs für Menschenrechte 10/10/06 Gerichtshof – Kammerurteile Andorra, Ungarn, Finnland, Frankreich, Polen, die Slowakei, Schweden und die Türkei betreffend EUROPEAN COURT OF HUMAN RIGHTS 574
Press release issued by the Registrar Chamber judgments concerning Andorra, Hungary, Finland, France, Poland, Slovakia and Sweden and Turkey The European Court of Human Rights has today notified in writing the following 28 Chamber judgments, of which only the friendly-settlement judgments are final.1 Repetitive cases2 and length-of-proceedings cases, with the Court’s main finding indicated, can also be found at the end of the press release. Just satisfaction
The case concerned court decisions that Mr Pla Puncernau, as an adopted child, could not inherit the estate of Mr Pla Pujol’s mother. The applicants alleged that those decisions in respect of Mr Pla Puncernau amounted to discrimination between biological and adopted children in the enjoyment of inheritance rights. In its judgment of 13 July 2004 the European Court of Human Rights found that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) and that it was not necessary to examine the application separately under Article 8 alone. It also held that the question of just satisfaction was not ready for decision. In today’s judgment on just satisfaction the Court decided to strike the case out of its list, as the parties have reached a friendly settlement under which, in respect of pecuniary and non-pecuniary damage, the sister of Antoni Pla Puncernau is to receive 970,000 euros (EUR) and the heirs of Mrs Puncernau Pedro EUR 10,000 (The judgment is available only in French.) ./.. Fryckman v. Finland (application no. 36288/97) Violation of Article 6 § 1 (length)
In 22 March 1993 the applicant was interrogated by the police regarding a criminal complaint filed by the tax authorities. On 13 June 2000 the District Court of Helsinki found the applicant guilty of debtor’s dishonesty and sentenced him to 18 months’ imprisonment. On 28 June 2002 the Supreme Court refused the applicant leave to appeal. The applicant complained about the length of the criminal proceedings. He relied on Article 6 § 1 (right to a fair trial within a reasonable time). The Court noted that the proceedings in question had lasted over nine years and three months. Having regard to the circumstances of the case, it considered that such a length of time was excessive and failed to satisfy the “reasonable time” requirement. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 5,000 in respect of non-pecuniary damage and EUR 3,500 for costs and expenses. (The judgment is available only in English.) L.L. v. France (no. 7508/02) Violation of Article 8
In 1996 the applicant’s wife filed a petition for divorce on the grounds of his repeated acts of domestic violence and chronic alcoholism. In 1998 the tribunal de grande instance, having noted in particular that she had produced medical certificates in support of those allegations, granted the divorce on grounds of fault by the applicant and confirmed the interim measures whereby the mother had been given custody of the couple’s two children, who were born in 1985 and 1988. The applicant appealed against that decision, claiming that his ex-wife had acted fraudulently in obtaining a report of an operation that he had undergone to remove his spleen, and arguing that she was therefore not entitled to use it in court proceedings. He further maintained that he had never given her a copy of that report, nor had he released the doctor who signed it from his duty of medical secrecy in that connection. In February 2000 the Court of Appeal upheld the judgment under appeal. It found in particular that the medical certificates produced by the applicant’s ex-wife confirmed that he was an alcoholic and that he was violent as a result. With a view to appealing on points of law, the applicant lodged an application for legal aid with the Court of Cassation’s legal aid office, but his request was denied. In the meantime, following a report of ill-treatment filed by the applicant, the children’s judge ordered a measure of educational assistance in an open environment for the couple’s children. The applicant complained about the production and use in court proceedings of documents from his medical records, without his consent and without a medical expert having been appointed in that connection. He relied on Article 8 (right to respect for private and family life). The Court noted that, by basing its decision on the details of the operation report and quoting the passages that it found relevant, the Court of Appeal had disclosed and rendered public personal data concerning the applicant. The Court further observed that in their decisions the French courts had first referred to the witness statements testifying to the applicant’s drink problem and to the “duly detailed” medical certificates recording the “reality of the violence inflicted on the wife”, concluding that the conduct taken into account had constituted a serious and repeated breach of marital duties and obligations and had led to an irretrievable breakdown in the marriage. It was only on a subsidiary basis that the courts had referred to the impugned medical report in support of their decisions, and it therefore appeared that they could have reached the same conclusion without it. The Court therefore considered that the impugned interference with the applicant’s right to respect for his private life, in view of the fundamental importance of the protection of personal data, was not proportionate to the aim pursued and was not “necessary in a democratic society”, “for the protection of the rights and freedoms of others”. The Court further noted that domestic law did not provide sufficient safeguards as regards the use in this type of proceedings of data concerning the parties’ private lives, thus justifying a fortiori the need for a strict review as to the necessity of such measures. The Court accordingly found, unanimously, that there had been a violation of Article 8. It considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicant. (The judgment is available only in French.) Pessino v. France (no. 40403/02) Violation of Article 7
In October 1992 the property holding company of which he was manager obtained planning permission from the mayor of Cannes to build a hotel. Following an action brought by a local residents’ association the permission was suspended. However, the work continued, and the applicant’s company, which challenged that suspension, obtained fresh planning permission. Both of the construction permits issued to the company were subsequently annulled. Further to a complaint lodged by the Cannes residents’ association, the Grasse tribunal de grande instance found the applicant guilty of carrying out structural work in breach of the suspension order. He was ordered to pay a fine of FRF 1,500,000 (about EUR 228,674). On appeal, the facts of the case were reclassified during the proceedings as constituting the offence of carrying out construction work without prior planning permission, contrary to the relevant provision of the Planning Code, and the demolition of the impugned construction was ordered. The applicant appealed on points of law, claiming that the continuation of construction work in spite of a decision of the administrative court ordering the suspension of the planning permission was not a criminal offence. The Court of Cassation dismissed his appeal on 6 May 2002. The applicant alleged that the acts with which he was charged had not been classified as offences at the relevant time. He relied on Article 7 (no punishment without law). The Court noted that it had not been shown that, prior to the domestic judgment in the present case, there had been case-law to the effect that the continuation of construction work in spite of a decision of the administrative court ordering the suspension of the planning permission was a criminal offence. Further, an analysis of the Planning Code appeared to show that a suspension of planning permission could not, in terms of its consequences under the criminal law, be clearly treated as a judicial decision or judgment ordering the construction work to be halted. In those circumstances, even though he was a professional who could benefit from the advice of lawyers, it would have been difficult or even impossible for the applicant to foresee the Court of Cassation’s departure from precedent and therefore to realise, at the time he committed the acts, that they might carry a criminal sanction. Accordingly, the Court found, unanimously, that there had been a violation of Article 7. It also held that the applicant should be reimbursed for the fine. It considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicant and awarded him EUR 1,794 for costs and expenses. (The judgment is available only in French.) S.U. v. France (no. 23054/03) Violation of Article 5 § 4
On 8 November 2001 she was ordered to undergo compulsory treatment in a psychiatric unit at the police headquarters. On 11 July 2002 she lodged an application with the liberties and detention judge seeking immediate release and the discharge of the order confining her to hospital. On 28 March 2003 the Commissioner of Police ordered that the applicant be released from compulsory hospitalisation. The applicant alleged in particular that the deprivation of her liberty had entailed a violation of Article 5 § 4 (right to liberty and security). The Court observed that the liberties and detention judge did not rule on the application for immediate release until some seven months after it was lodged. Such a length of time could not be considered “prompt” within the meaning of the Convention. Accordingly, the Court held, unanimously, that there had been a violation of Article 5 § 4 and awarded the applicant EUR 4,000 in respect of non-pecuniary damage and EUR 1,600 for costs and expenses. (The judgment is available only in French.) Zasłona v. Poland (no. 25301/02) Violation of Article 5 § 3
On 12 February 2001 he was arrested and remanded in custody on suspicion of participating in armed attacks on lorry drivers as a member of an organised criminal gang. The authorities extended his detention on remand by reference to the harsh sentence for which he was liable, the complexity of the case, the danger of his absconding and the risk of impeding the proper administration of justice. On 29 March 2005 the regional court sentenced the applicant to ten years’ imprisonment. He appealed and was released on 14 March 2006. The case is currently pending before the Polish courts. The applicant complained in particular about the length of his pre-trial detention, relying on Articles 5 § 3 (right to liberty and security). The Court noted that the applicant had been held in pre-trial detention for some four years and four months. The grounds relied upon by the authorities to refuse his release were initially sufficient to justify his detention. However, with the passing of time those grounds became less pertinent. Such grounds could not suffice to justify the maintaining of the impugned measure of detention for such a lengthy period. Accordingly, the Court held, unanimously, that there had been a violation of Article 5 § 3, and awarded the applicant EUR 1,500 in respect of non-pecuniary damage and EUR 650 for costs and expenses. (The judgment is available only in French.) Violation of Article 8
In 2004 the applicant sought to bring proceedings to challenge a declaration of paternity made in 1970. He was in possession of new evidence, in the form of a DNA report, which proved that he was not the father. The Bratislava Regional Prosecutor and the Prosecutor General informed the applicant that since his paternity had already been decided on by a court with a final effect, they had not power to have the matter reviewed in court again. The applicant then lodged an unsuccessful complaint with the Constitutional Court alleging that there were no legal means of removing the incongruity between his legal position and his true situation under the Code of Civil Procedure or the Family Code. He also claimed that the authorities had failed to take adequate positive measures to protect his rights and that, as a result, he was wrongly identified as being the father of a daughter in various public documents and records. His identity had thus been affected and he had no way of clarifying the matter. The applicant complained in particular, that he had no legal means to challenge the declaration of paternity. He relied on Articles 8 (right to respect for private and family life), 13 (right to an effective remedy) 14 (prohibition of discrimination), 6 § 1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No. 1. The Court noted that the law did not provide the applicant with any possibility of challenging the judicial declaration of his paternity. Although the Court accepted that the law needed to ensure legal certainty and security of family relationships and protect interests of children, it noted that his daughter was now almost 40 years old, had her own family and was not dependent on the applicant. The general interest in protecting her rights at that stage, therefore, had lost much of its importance. Furthermore, she initiated the DNA test herself and said that she had no objection to the applicant’s disclaiming paternity. It therefore appeared that the lack of a procedure for bringing the legal position into line with the biological reality flew in the face of the wishes of those concerned and did not in fact benefit anyone. The Court therefore concluded that there had been a failure in the domestic legal system to secure to the applicant respect for his private life and held unanimously that there had therefore been a violation of Article 8. The Court noted that parents in cases where paternity was presumed, rather than tested, were able to take legal steps to contest the man’s paternity but that the law made no allowance for the specific circumstances of the applicant’s case. The Court therefore concluded that there was no reasonable relationship of proportionality between the aim sought by the legislation and the absolute means employed. It therefore held unanimously that there had been a violation of Article 14, taken in conjunction with Article 8. The Court also held unanimously that there was no need to examine separately the other complaints under Articles 6, 8, 13 and 14 and declared the remainder of the application inadmissible. The applicant was awarded EUR 5,000 for non-pecuniary damage and EUR 1,800 for costs and expenses (The judgment is available only in English.) Falakaoğlu v. Turkey (No. 2) (no. 11840/02) Violation of Article 10
In December 2000 the newspaper Yeni Evrensel published an article in which the writer, appealing to “Kurdish-Turkish workers and the whole community of workers”, denounced “the policy of negationism and oppression” and advocated “the recognition of full legal equality”. The applicant, in his capacity as editor, was charged with inciting the people to hatred and hostility on racial and regional grounds, and was sentenced on 18 July 2001 to two years’ imprisonment. The prison sentence was subsequently converted to a fine. There was also a two-day ban on the publication of the newspaper. The applicant complained that his criminal conviction had entailed a violation of Article 10 (freedom of expression). The Court considered that the grounds relied upon by the Turkish courts could not in themselves be considered sufficient to justify the interference with the applicant’s right to freedom of expression. Moreover, it failed to find anything in the article that could be regarded as a call to violence, uprising or any other form of rejection of democratic principles. The Court found that the applicant’s conviction was disproportionate to the aims pursued and was accordingly not “necessary in a democratic society”. The Court thus held, unanimously, that there had been a violation of Article 10 and awarded the applicant EUR 1,780 for pecuniary damage, EUR 3,000 for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.) Violation of Article 6 § 1 (fairness)
On 17 February 2000 the applicant was convicted and ordered to pay a fine for separatist propaganda through the press, on account of the publication of two articles in the newspaper Özgür Bakış in July 1999. The articles dealt with the struggle facing the illegal armed organisation PKK (Kurdistan Workers’ Party) following the arrest of its leader Abdullah Öcalan. The applicant complained of the unfairness of the proceedings in the Court of Cassation, alleging that he had been unable to respond to the opinion of Principal State Counsel. Moreover, he argued that his conviction entailed a violation of his right to freedom of expression. He relied on Article 6 § 1 (right to a fair trial) and Article 10 (freedom of expression). The Court had already had occasion to find that the non-communication of Principal State Counsel’s opinion, given the nature of his submissions and the impossibility for a party to respond in writing, entailed a violation of Article 6 § 1. Having no reason to depart from that finding in the present case, the Court held, unanimously, that there had been a violation of Article 6 § 1. The Court considered that, as a whole, the content of the articles could be regarded as inciting violence, armed resistance or uprising. The offending language came from articles published after the arrest of Abdullah Öcalan, the substance of which incited those who defended the Kurdish cause to commit acts of violence. The articles were capable of promoting violence in south-east Turkey. In those circumstances the Court found that the grounds for the applicant’s conviction were relevant and sufficient to justify interference with his right to freedom of expression. It reiterated that such interference was not justified when “information” or “ideas” simply offended, shocked or disturbed. But in the applicant’s case, however, there had been an incitement to the glorification of violence. Whilst it was true that the applicant had not personally associated himself with the views contained in the articles, he had nevertheless provided the writers with an outlet for stirring up violence and hatred. He was subject to the “duties and responsibilities” assumed by editors and journalists in gathering information and imparting it to the general public – a role that was even more crucial in situations of conflict and tension. In those circumstances the Court held, unanimously, that there had not been a violation of Article 10. As the applicant had not submitted any claim for just satisfaction, despite his attention having been drawn to that point, the Court considered that no award should be made to him under that head. (The judgment is available only in French.) Kadriye Yıldız and Others v. Turkey (no. 73016/01) Violation of Article 1 of Protocol No. 1
On 17 July 1992 Mardin Court of First Instance ordered the Ministry of Defence to pay the applicants approximately 228,090 American dollars in compensation. It found that, despite the fact that the land had been occupied since 1958, it was registered in the land register in the names of the applicants in 1991 following proceedings that had started in 1969 and ended in 1987. The Ministry of Defence appealed on points of law, arguing that – in accordance with section 38 of the Expropriation Act (Law no. 2942) – the applicants, who had not instituted legal proceedings within the statutory 20-year time-limit, had forfeited all their rights. The Court of Cassation quashed the judgment in question and remitted the case to the lower court, which revoked the applicants’ property title and transferred ownership of the land to the authorities. The applicants alleged, among other things, that the deprivation of the property in question, without the payment of compensation, amounted to a violation of Article 1 of Protocol No. 1 (protection of property). The Court held that the application of section 38 of Law no. 2942, which makes provision for adverse possession in favour of the State without compensation, had had the effect of depriving the applicants of any possibility of obtaining compensation for the revocation of their property title. Such interference could not but be regarded as arbitrary, in so far as there had been no procedure for compensation capable of maintaining the fair balance that should obtain between the demands of the general interest of the community and the requirements of the protection of the individual’s rights. Consequently, the Court held unanimously that there had been a breach of Article 1 of Protocol No. 1 and awarded the applicants EUR 250,000 jointly for non-pecuniary damage and EUR 4,000 for costs and expenses. (The judgment is available only in French.) Tunceli Kültür ve Dayanışma Derneği v. Turkey (no. 61353/00) Violation of Article 11
On 14 February 2000 the chairperson and a member of the association’s board of management were sentenced to one year’s imprisonment for having made or authorised statements of a political nature, the tenor of which was contrary to the association’s social aim, at a congress in November 1996. The association was subsequently dissolved and its assets liquidated. The applicant association alleged that its dissolution on account of statements made by its members had infringed its rights to freedom of expression and association. It relied on Articles 10 (freedom of expression), 11 (freedom of assembly and association), 6 (right to a fair hearing), 13 (right to an effective remedy) and Article 1 of Protocol No. 1 (protection of property). The Court decided to examine the complaints lodged under Articles 10 and 11 under Article 11 alone. It noted that the Turkish courts had considered that only the individuals prosecuted, and not the association itself, were criminally responsible under the law. Nevertheless, in convicting the directors the Turkish courts had also dissolved the association, in accordance with sections 5 and 76 of former law no. 2908, despite the fact that it had not been a party to the criminal proceedings brought against the directors. The association had thus been dissolved with immediate and final effect. The Court could not but note that that measure had been an extremely harsh one. In those circumstances the Court considered that the dissolution of the association could not reasonably answer a “pressing social need” and that it had not therefore been “necessary in a democratic society”. Accordingly, it held, by six votes to one, that there had been a violation of Article 11. The Court considered that there was no need to examine separately the other complaints relied on by the applicant. It held that the finding of a violation of the Convention constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicant association and awarded it EUR 3,110 for costs and expenses. (The judgment is available only in French.) Violation of Article 5 § 3
On 10 September 1994 the applicant was arrested and placed in police custody on suspicion of being a member of an illegal organisation. The authorities regularly reviewed and ordered his continued detention on remand, citing as grounds, the nature of the offence for which he stood accused, the state of the evidence and the content of the case file. The proceedings are still pending. He complained about the length of his detention and the length of the proceedings. He relied on Articles 5 § 3 (right to liberty and security) and 6 § 1 (right to a fair trial within a reasonable time). The Court noted that the domestic court continually prolonged the applicant’s detention using identical, stereotyped terms. The Court held that such reasoning alone, could not justify keeping the applicant in detention on remand for 12 years. It therefore concluded that there had been a violation of Article 5 § 3. The Court also noted that the proceedings in question had lasted 12 years. Having regard to the circumstances of the case, it considered that such a length of time was excessive and failed to satisfy the “reasonable time” requirement. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 of the Convention. The applicant was awarded EUR 18,000 in respect of pecuniary and non-pecuniary damage. (The judgment is available only in English.) Violation of Article 6 § 1 (fairness)
In 1992 the management of the state mining company sent the applicant to Japan for a three-month training period, but subsequently refused to pay him part of the travelling allowance. On 22 March 2001 the Zonguldak Administrative Court ordered the authorities to pay compensation to the applicant. The applicant complained about the authorities’ failure to pay the damages awarded by the courts. He relied on Article 1 of Protocol No. 1 (protection of property) and Article 6 § 1 (right to a fair hearing). The Court pointed out that the judgment in question had remained unenforced for nearly three years. By failing, during that period, to take the measures necessary to comply with the final judicial decision made in the case, the Turkish authorities had partly deprived the provisions of Article 6 § 1 and Article 1 of Protocol No. 1 of their useful effect. Accordingly, the Court held, unanimously, that there had been a violation of both those Articles. The Court held that it was incumbent on Turkey to pay the debt due to the applicant at the earliest opportunity. (The judgment is available only in French.) Repetitive cases In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention: Bonifacio v. France (no. 18113/02) Violation of Article 6 § 1 (fairness)
In 1999 a disciplinary sanction was imposed on the applicant, who is a vet, and he was banned from working for four months. He challenged this decision before the Conseil d’Etat. Relying on Article 6 (right to a fair hearing), the applicant complained that the proceedings before the Conseil d’Etat had been unfair on account, in particular, of the presence of the Government Commissioner at the deliberations. The Court held unanimously that there had been a breach of Article 6 § 1 on account of the Government Commissioner having participated in the deliberations of the Conseil d’Etat. It awarded the applicant EUR 2,000 for costs and expenses. (The judgment is available only in French.) Lozan and Others v. Moldova (no. 20567/02) Violation of Article 6 § 1 (fairness)
They complained about the lengthy failure to enforcement a judgment given in their favour regarding legal tenancies. They relied on Article 6 § 1 (access to a court). The Court noted that the judgment in question was not enforced for three years, a situation for which the Government had not provided any plausible justification. The Court therefore held, unanimously, that there had been a violation of Article 6 § 1 and awarded each applicant EUR 500 in respect of non-pecuniary damage and EUR 500, jointly, for costs and expenses. (The judgment is available only in English.) Çomak v. Turkey (no. 225/02) Violation of Article 6 § 1 (fairness)
The applicant was arrested in August 1994 on suspicion of belonging to the PKK (Kurdistan Workers’ Party), an organisation proscribed under Turkish law. Criminal proceedings were instituted against him. On 31 October 2000 Istanbul State Security Court convicted him of separatist activities and sentenced him to life imprisonment. Relying on Article 6 § 1 (right to a fair trial), the applicant alleged that his case had not been examined by an independent and impartial tribunal on account of the presence of a military judge among the members of the state security court. The Court reiterated that civilians standing trial for offences under the Criminal Code had legitimate reason to fear that a state security court which included a military judge among its members might not be independent and impartial. Accordingly, the Court held, unanimously, that there had been a breach of Article 6 § 1 and awarded the applicant EUR 1,000 for costs and expenses. (The judgment is available only in French.) Violation of Article 1 of Protocol No. 1
They complained, in particular, that they were paid insufficient interest on the additional compensation received following the expropriation of their land and that the authorities delayed paying them the relevant amount. They relied on 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. It further held that in Mutlu v. Turkey the finding of a violation constituted in itself sufficient compensation for any non-pecuniary damage, and awarded Mr Acar EUR 17,455 for pecuniary damage and EUR 1,000 for costs and expenses. (The Mehmet Emin Acar v. Turkey judgement is available only in French, and the Mutlu v. Turkey judgment only in English.) Length-of-proceedings cases In the following cases the applicants complained in particular of the excessive length of civil proceedings. They relied on Article 6 § 1 (right to a fair hearing within a reasonable time.) Białas v. Poland (no. 69129/01) No violation of Article 6 § 1 (length) Violation of Article 6 § 1 (length)
Sali v. Sweden (no. 67070/01) Friendly settlement *** 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). Press contacts
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. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
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