CEDH · PRESS;GENERAL;ENG — 24 avril 2003

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .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 } .s76CF415B { page-break-before:always; clear:both } .s3E58AD5E { width:96.14pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s60AAF2ED { width:102.78pt; display:inline-block } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; 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     217   24.4.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Austria, Italy and Turkey   The European Court of Human Rights has today notified in writing the following three Chamber judgments, none of which is final. [1]   (1)     Sylvester v. Austria (application nos.   36812/97 and   40104/98) Violation Article 8 The first applicant, Thomas Richard Sylvester, was born in 1953 and is a national of the United States of America. The second applicant is his daughter, Carina Maria Sylvester, who was born in 1994 and has dual US and Austrian nationality. The first applicant lives in Michigan and the second applicant in Graz (Austria).   Mr Sylvester married an Austrian citizen in 1994. They set up home in the United States and their daughter was born on 11 September 1994. They had joint custody of her under Michigan State law. On 30 October 1995 Mr Sylvester’s wife left the United States for Austria, taking their daughter with her without obtaining her husband’s consent. Mr Sylvester applied to the Austrian courts for his daughter’s return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. His application was granted on 25   December 1995 and the mother’s subsequent appeals all dismissed. On 16 April 1996 Mr Sylvester was granted a divorce in the US courts and given sole custody of the child should she return. He successfully applied to the Graz District Court for enforcement of the return order. In attempting to enforce the order on 10 May 1996, a bailiff, assisted by a police officer, a locksmith and a representative from the Youth Welfare Office, forcibly searched the mother’s house, but were unable to find the child. On 15 May 1996 the child’s mother appealed against the enforcement order.   On 28 August 1996 the Graz Regional Civil Court set aside the District Court’s enforcement order and referred the case back to that court, ordering it to examine whether the situation had changed since the order had been made for the child’s return. Mr Sylvester appealed to the Supreme Court, which upheld the Regional Civil Court’s decision. The Austrian courts went on to find that the situation had changed, that the child’s well-being was paramount and that her removal from her mother would expose her to serious psychological harm. Mr Sylvester was granted a few hours’ supervised contact with his daughter on 2,3 and 4 June 1997. The mother was given sole custody of her on 29 December 1997.   The applicants complained, under Article 8 (right to respect for family life) and Article 6 (right to a fair hearing), that the Supreme Court had ordered a review of questions which had already been dealt with in the final return order and that this had ultimately prevented the child from being returned to her father.   The Court reiterated that the essential purpose of Article 8 was to protect the individual from arbitrary action by public authorities and that there might in addition be positive obligations on the authorities to ensure effective respect for family life. One of those obligations was to take measures to enforce a parent’s right to be reunited with their child, though that obligation was not an absolute one since some preparation might be required before a parent could be reunited with a child who had been living with the other parent for some time. Any obligation on the authorities to apply coercion in this area was limited since the interests and rights and freedoms of all concerned had to be taken into account, and more particularly those of the child. Where contacts with the parent might appear to threaten those interests or interfere with those rights, the national authorities had to strike a fair balance between them.   What was decisive in cases of this kind was whether all necessary steps to facilitate the child’s return had been taken. The adequacy of a measure was to be judged by how quickly it had been implemented as the passage of time could have irremediable consequences for relations between the child and the non-resident parent. The Court accepted that a change in the relevant facts might exceptionally justify not enforcing a final return order, but had to be satisfied that this change had not been brought about by the State’s failure to take all reasonable measures.   The Austrian courts’ decisions to set aside the enforcement order had relied rather heavily on the lapse of time and the child’s consequent alienation from her father. It had taken three and a half months for the Regional Civil Court to quash the enforcement order and refer the case back to the District Court and it had taken the District Court more than five months to obtain the opinion of an expert in child psychology. The Court reiterated that effective respect for family life required that future relations between parent and child should not be determined merely by the passage of time. The Court found that the Austrian authorities had failed to take promptly all measures that could reasonably have been expected of them to enforce the return order and had consequently breached the applicants’ right to respect for their family life, as guaranteed by Article 8.   Article 6 provided a procedural safeguard in the determination of civil rights and obligations, whereas Article 8 served the wider purpose of ensuring respect for family life. In the present case the Court found that it was unnecessary to examine the complaint under Article 6 because it had been absorbed by its examination of the facts under Article 8.   The Court held unanimously that there had been a violation of Article 8 of the European Convention on Human Rights and awarded the first applicant 20,000 euros (EUR) for non-pecuniary damage and EUR 22,682.61 for costs and expenses. It held by four votes to three that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damage sustained by the second applicant. (The judgment is available only in English.)   (2)     Victor Emmanuel of Savoy v. Italy   (no. 53360/99)   Struck out Victor Emmanuel of Savoy is an Italian national who was born in 1937 and lives in Geneva (Switzerland). He is the son of Umberto II, the last king of Italy. He left Italy in 1946 when his father went into exile following the proclamation of the Italian Republic. The applicant has been the Head of the House of Savoy since his father’s death on 18 March 1983.   The applicant complained that he was prohibited by the Italian Constitution, which came into force on 1 January 1948, from entering or residing in Italy. The first paragraph of Article XIII of the transitional and final provisions of the Constitution provided: “Members and descendants of the House of Savoy shall not be entitled to vote or authorised to hold public office or stand for election”. The second subparagraph provided: “Former kings of the House of Savoy, their spouses and male descendants shall not enter Italian territory or reside there”. The latter paragraph was the subject matter of interpretation by the Italian courts in the form of opinions of the Consiglio del Stato or decisions of the ordinary and constitutional courts. In its most recent opinion, the Consiglio del Stato said that the applicant would not be able to enter Italy until Article XIII had been repealed.   The Constitution (No. 1) Act of 23 October 2002, which entered into force on 10 November 2002, provides that paragraphs 1 and 2 of Article XIII shall have no further effect from the date the Act enters into force.   The applicant alleged a violation of Article 3 § 2 of Protocol No. 4 (right to enter the territory of a State of which one is a national) to the Convention. He also complained of discrimination, contrary to Article 14 (prohibition of discrimination) of the Convention, and that he had been deprived of his electoral rights, as guaranteed by Article 3 of Protocol No. 1. He maintained that, as a consequence, the Italian State was also in breach of Article 3 of the Convention (prohibition of inhuman or degrading treatment).   Referring to the entry into force of the Constitutional Act and a letter in which the applicant had stated that he was prepared to withdraw his application, the Government said that its dispute with the applicant had been resolved and that the application should be struck out of the list.   The Court noted that on 8 July 2002 the applicant had written to the Committee of Ministers saying that he intended to withdraw his application once the Constitutional Act had been passed and the time-limit for requesting a referendum had expired without a decision to hold a referendum being taken. According to him, there were no outstanding issues between the parties. The Court further noted that paragraphs 1 and 2 of Article XIII were no longer in force in Italian law, the Government had withdrawn its reservation and the applicant was free to enter Italy and had indeed done so.   In the light of those two considerations, the Court found, in accordance with Article 37 § 1 (c) of the Convention, that there was no longer any justification for continuing to examine the application. Accordingly, it decided unanimously to strike it out of the list. (The judgment is available only in French.)   (3)     Yıltaş Yıldız Turistik Tesisleri A.Ş. v. Turkey (no. 30502/96)   Violation Article 1 of Protocol No. 1 Yıltaş Yıldız Turistik Tesisleri A.Ş. is a Turkish company that carries on business in the building industry and whose registered office is in Istanbul.   In 1987 it purchased nearly 4,000,000 m 2 of private woodlands for 6,467,693,808 Turkish liras (TRL) (approximately 7,606,367 US dollars (USD) at the material time) and obtained planning permission in respect of part of the land. A few months later it was served with an expropriation order that had been issued in 1977.   An application by the applicant company to have the expropriation order set aside was dismissed by the administrative courts. The applicant company then sought additional expropriation compensation in the civil courts. A court-appointed expert assessed the value of the property at TRL 22,658,069,013 (approximately USD   3,861,793 at the material time). However, at the end of the proceedings, the applicant company was paid TRL   2,971,314,013 (approximately USD   67,834 at the material time), the compensation having been calculated by reference to the value of the buildings and the annual receipts from the woodlands.   The applicant company complained under Article 1 of Protocol No. 1 (protection of property) to the Convention that the additional compensation awarded by the domestic courts did not reflect the true value of the land.   The Court noted that the domestic courts had assessed the compensation without taking into account the value of the land for which planning permission had been obtained. While it could not substitute its own view of the relevant criteria for assessing the value of the land or of the amount of compensation payable as a result, it considered that the applicant company had sufficiently established that the amount of compensation determined by the domestic courts was unreasonable when compared to the value of the property. Accordingly, it held unanimously that there had been a violation of Article 1 of Protocol No 1. The question of the application of Article 41 (just satisfaction) was not ready for determination and was therefore reserved in full. (The judgment is 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 Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Joanna Reynell (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 in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [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.