CEDH · PRESS;GENERAL;ENG — 7 février 2006

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[1]   Repetitive cases [2] and length-of-proceedings cases, with the Court’s main finding indicated, can also be found at the end of the press release.     Halis Doğan v. Turkey (no. 75946/01)   Violation of Article 6 § 1 (fairness) The applicant, Halis Doğan, is a Turkish national who was born in 1944 and lives in Istanbul. At the material time he was the proprietor of the newspaper Özgür Bakış .   On 2 February 2000 Istanbul State Security Court ordered the seizure of the special edition entitled “The Kurds from 1900 to 2000: Chronological Album”, published as a supplement to the Özgür Bakış newspaper, on the ground that it contained separatist propaganda. No copies were actually seized as they had all been sold.   In addition, on 8 December 2000 the applicant was sentenced, in particular, to six months’ imprisonment by the state security court, for publishing separatist propaganda. The prison sentence was later commuted to a fine. The applicant appealed on points of law. The submissions of Principal State Counsel at the Court of Cassation, in which he addressed the merits of the appeal and concluded that the judgment appealed against should be upheld, were not communicated to the applicant. The appeal was dismissed by the Court of Cassation in a decision of 10 April 2001.   The applicant complained in particular of the unfairness of the proceedings in the Court of Cassation, which in his view stemmed from his inability to respond to Principal State Counsel’s submissions. He relied on Article 6 § 1 (right to a fair trial), Article 10 (freedom of expression) and Article 7 (no punishment without law) of the European Convention on Human Rights, and on Article   1 of Protocol No. 1 (protection of property).   The European Court of Human Rights declared only the complaint under Article 6 § 1 admissible and the remainder of the application inadmissible.   The Court referred to its finding in previous cases that the non-communication of Principal State Counsel’s opinion, in view of the nature of his submissions and of the defendant’s inability to make written observations in reply, entailed a breach of Article 6 § 1. Seeing no reason to depart from that conclusion in the present case, the Court held, unanimously, that there had been a violation of Article 6 § 1 and awarded the applicant 1,000 euros (EUR) for costs and expenses, less the sum of EUR 685 he had received by way of legal aid from the Council of Europe. (The judgment is available only in French.)   Mürsel Eren v. Turkey (no. 60856/00)   Violation of Article 2 of Protocol No. 1 The applicant, Mürsel Eren, is a Turkish national who was born in 1972 and lives in Ankara. He started taking his university examinations in 1994 at a time when, in order to qualify for a university degree course in Turkey, would-be students were required to pass a two-stage multiple-choice examination organised by the Higher Education Council’s Centre for the Selection and Placement of Students (Yükseköğretim Kurulu Öğrenci Seçme ve Yerleştirme Merkezi, hereinafter the “ÖSYM” ) .   The applicant failed to pass the first stage of the university entrance examination in his first three attempts between 1994 and 1996.   The applicant attended a private course in Ankara in order to prepare for the 1997 examinations. He submitted that he studied very hard and, on occasions, obtained the highest marks in his class in mock examinations.   In the first stage of the examinations in 1997, the applicant obtained 131 points which enabled him to proceed to the second stage, the required minimum being 105 points. Following the second examination, his name was not in the list of successful students allowed to register at a university. On 12   August   the ÖSYM informed him that he had obtained 493 points in the second examination – one of the highest results – but that his results had been annulled after an academic council of three professors found that, given his poor results in the previous years, his excellent achievement could not be explained. The letter of the ÖSYM contained no indication that it suspected the applicant of any impropriety.   The applicant appealed unsuccessfully before the administrative courts.   The applicant complained that the decision to annul his exam results arbitrarily denied him his right to education under Article   2 of Protocol No. 1 (right to education).   The European Court of Human Rights noted that the Turkish Government had failed to point to any legal basis for the ÖSYM’s discretion to annul the exam results of candidates on the ground of their inability to explain their success. At any rate, any legal basis for such broad discretion might create such legal uncertainty as to be incompatible with the rule of law, one of the basic principles of a democratic society enshrined in the Convention, or the very substance of the right to education.   The Court emphasised that annulling the exam results of a candidate who was found to have cheated during the exam, was not an action left to the discretion of the ÖSYM, but one of that organisation’s duties. Yet neither the academic council nor any of the administrative courts found any proof of impropriety on the part of the applicant. The results achieved by participants in Turkey’s university entrance examinations were calculated in a highly elaborate way which left no leeway for the authorities to substitute the results of the computerised systems marking the exam papers with their own personal views. Indeed, the clear wording of the ÖSYM’s regulations allowed students to form the legitimate expectation that they would be able to attend the university course for which they had obtained the necessary marks at the exam. In other words, where legislation lay down conditions for the admission to a university and a candidate for admission satisfied those conditions, he or she had a right to be admitted to that university.   The Court was of the opinion that the ÖSYM’s regulations afforded a measure of legal protection against arbitrary interference by public authorities with the right to education, a right safeguarded by the Convention. It followed, therefore, that if public authorities overrode or ignored those regulations, that legal protection would be damaged.   In the absence of any proof that the applicant had cheated – or even any explicit accusation levelled against him to that effect – and bearing in mind his undisputed submission that he had prepared for the 1997 examinations by attending a private course, the Court found untenable the conclusion reached by the academic council that his good results could not be explained. It concluded, therefore, that the decision to annul the applicant’s exam results, which was subsequently upheld by the domestic courts, lacked a legal and rational basis, resulting in arbitrariness. The Court therefore concluded that the ÖSYM, by annulling the applicant’s exam results on the basis of the academic council’s advice, denied the applicant his right to education.   The Court held by six votes to one that there had been a violation of Article 2 of Protocol No.   1 and awarded the applicant EUR 5,000 in respect of non-pecuniary damage and EUR   5,000 (less EUR 630, granted as legal aid) for costs and expenses. (The judgment is available only in English.)     Violation of Article 5 §§ 3 and 4   Two violations of Article 6 § 1 (length & fairness) Tekin and Baltaş v. Turkey (nos. 42554/98 and 42581/98)   The applicants, Haydar Tekin and Çetin Baltaş, are Turkish nationals who were born in 1969 and 1973 respectively. At the time the application was lodged with the Court, the applicants were detained in Batman Prison (Turkey).   On 15 September 1992 the applicants were arrested and taken into police custody in connection with a police operation following the death of nine individuals during a violent clash on Değirmendere Bridge at Kozluk.   On 11 May 1999 Diyarbakır State Security Court found the applicants guilty of separatism and of undermining the integrity of the State. It sentenced Mr Tekin to life imprisonment and Mr Baltaş to three years and nine months’ imprisonment. Mr Baltaş was released that same day and Mr Tekin was released on 29 May 2000. The Court of Cassation referred the case back to the state security court, which, in a judgment of 30 May 2002, sentenced Mr Baltaş to 12 years and six months’ imprisonment and found that the proceedings against Mr Tekin were time-barred and should be discontinued. In June 2005, under Law no. 5237, Diyarbakır Assize Court reduced Mr Baltaş’s sentence to six years and three months’ imprisonment.   Relying on Article 5 §§ 3 and 4 (right to liberty and security), the applicants complained of the excessive length of their detention pending trial and the lack of an effective remedy in respect of the lawfulness of their detention. Relying on Articles 6 (right to a fair hearing) and 13 (right to an effective remedy), they also complained of the unfairness and length of the proceedings against them and of the lack of a remedy under Turkish law in respect of that length. Mr Baltaş also complained, under Article 6 § 1, of the failure to notify him of the submissions on the merits of Principal State Counsel at the Court of Cassation.   The Court found admissible the applicants’ complaints under Article 5 §§ 3 and 4 and Article 6 § 1 (length of proceedings), and Mr Baltaş’s further complaint under Article 6 § 1.   It observed that Mr Tekin had been kept in pre-trial detention for more than seven years and eight months and that Mr Baltaş’s detention had lasted for almost six years and eight months. The Court noted that the state security court had lawfully prolonged the applicants’ detention on remand using terms that were almost always identical, even stereotyped, referring to the nature of the offences, the state of the evidence and the contents of the case file. On two occasions it failed to give reasons for its decision.   In the Court’s view, while “the state of the evidence” could be understood to mean the existence and persistence of serious indications of guilt and such circumstances could in general be relevant factors, they could not on their own justify extending the applicants’ detention over such a long period. The Court therefore held, unanimously, that there had been a violation of Article 5 § 3.   Observing that there had been no remedy allowing the applicants to complain of the length of their pre-trial detention, the Court held, unanimously, that there had been a violation of Article 5 § 4.   The Court further noted that the proceedings in question had lasted more than nine years and eight months in the case of Mr Tekin and more than ten years and five months in the case of Mr Baltaş. Having regard to the circumstances of the case, it considered that such periods were excessive and failed to meet the “reasonable time” requirement. The Court therefore held, unanimously, that there had been a violation of Article 6 § 1.   Lastly, the Court held, unanimously, that there had been a further violation of Article 6 § 1 (b) in that the submissions of Principal State Counsel had not been communicated to Mr Baltaş.   By way of just satisfaction, the Court awarded EUR 9,200 to Mr Tekin and EUR 8,500 to Mr Baltaş in respect of non-pecuniary damage. It also awarded them EUR 800 jointly for costs and expenses. (The judgment is available only in French.)     Repetitive cases     Violation of Article 1 of Protocol No. 1 Balcı and Others v. Turkey (no. 52642/99) Muharren Aslan Yıldız v. Turkey (no. 74530/01) Yatır v. Turkey (no. 74532/01) Yusuf Genç v. Turkey (no. 44295/98) In these four cases, the applicants complained under Article 1 of Protocol No. 1 (protection of property), of delays in the payment of compensation that was awarded to them for expropriated property. They further alleged that the interest they had received did not reflect the actual rate of inflation between the date the award was assessed and the date of payment   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and awarded the following amounts, in euros, in each case. (The judgments are available only in English.)     Pecuniary damage Costs and expenses Balcı and Others v. Turkey 523,573 (jointly) 1,000 (jointly) Muharren Aslan Yıldız v. Turkey 16,800 1,000 Yatır v. Turkey 26,000 1,000 Yusuf Genç v. Turkey 61,000 1,000       Length-of-proceedings cases   In the following cases the applicants complained of the excessive length of civil and administrative proceedings. In the cases of Donnadieu v. France (n° 2) and Šima v. Slovakia the applicants also complained that they had had no effective remedy in respect of that complaint, relying on Article 13 (right to an effective remedy).     Violation of Article 6 § 1 (length) Donnadieu v. France (n° 2) (application no 19249/02)   Violation of Article 13 The Court awarded: -                       For non-pecuniary damage: EUR 3,000 -                       For costs and expenses: EUR 500   Debono v. Malta (no. 34539/02)   Violation of Article 6 § 1 (length) The Court awarded: -                       For non-pecuniary damage: EUR 1,000 -                       For costs and expenses: EUR 2,500     Violation of Article 6 § 1 (length) Šima v. Slovakia (no. 67026/01)   Violation of Article 13 The Court awarded: -                       For non-pecuniary damage: EUR 2,000 -                       For costs and expenses: EUR 250   ***   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)   Beverley Jacobs (telephone: +00 33 (0)3 90 21 54 21) 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. [2] In which the Court has reached the same findings as in similar cases raising the same issues under the European Convention on Human Rights.