CEDH · PRESS;GENERAL;ENG — 20 avril 2004

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[1]   Bulena v. Czech Republic (application no. 57567/00)     Violation of Article 6 § 1 The applicant, František Bulena, is a Czech national who was born in 1949 and lives in Prague.   At the request of the Česká spořitelna (the Czech Savings Bank) the Prague Municipal Court declared the applicant bankrupt ( konkurz ) in June 1999. The decision was upheld on appeal to the Prague High Court. The applicant lodged a constitutional appeal (ústavní stížnost) against “the decision of the Prague Municipal Court, upheld by the decision of the Prague High Court”. The Constitutional Court dismissed his appeal as manifestly ill-founded on the ground that it had been directed only against the decision of the first-instance court whereas it should have been directed against the decision delivered on appeal.   Relying on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights, the applicant complained of a breach of his right of access to a court because the Constitutional Court had refused to examine the merits of his appeal. He submitted further that the declaration of bankruptcy had infringed his right to the peaceful enjoyment of his possessions, contrary to   Article 1 of Protocol No. 1 (protection of property).   The European Court of Human Rights noted that the object and purpose of the applicant’s appeal had been clear from the wording of it. The applicant had referred to the decision of the High Court so that the Constitutional Court could take it into consideration and a copy of the decision had been annexed to the pleadings. Accordingly, the Court considered that the Constitutional Court could have ruled on the merits of the case. Having regard to the circumstances of the case, the Court considered that the applicant could not be criticised for having directed his appeal against the decision delivered at first instance and upheld on appeal. Consequently, it found that the particularly formalistic interpretation of the procedural rule in question had deprived the applicant of the right of access to a court. The Court held, by six votes to one, that there had been a violation of Article 6 § 1.   The Court declared that it did not have jurisdiction to examine the complaint under Article 1 of Protocol No. 1, which had already been declared inadmissible. It held, by six votes to one, that the finding of a violation was adequate compensation for the non-pecuniary damage suffered by the applicant and awarded him 1,300 euros (EUR) for costs and expenses. (The judgment is available only in French). Violation of Article 8 Vadalà v. Italy (no. 51703/99)       Violation of Article 2 of Protocol No. 4 The applicant, Andrea Vadalà, is an Italian national who was born in 1922 and lives in Pistoia. His company was put into compulsory liquidation in May 1987. The insolvency proceedings are still pending.   The applicant alleged that, following the declaration of insolvency, correspondence sent to him had been given to the liquidator contrary to Article 8 (right to respect for correspondence) of the Convention. He also complained, under Article 2 of Protocol No. 4 (freedom of movement), of having been unable to leave his place of residence. Relying also on Article 6 § 1 (right to a fair hearing within a reasonable time), he complained of the length of the insolvency proceedings.   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 insolvency proceedings (about 16 years and nine months) had upset the fair balance which should be struck between the general interest in repaying creditors in an insolvency and the individual interests of the applicant, namely respect for his 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 8 and Article 2 of Protocol No. 4. Having thus concluded that there had been a breach of the Convention on account of the length of the proceedings, the Court held that there was no need to examine the application under Article 6 § 1.   Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Vadalà EUR   20,000 for non-pecuniary damage and EUR   3,000 for costs and expenses. (The judgment is available only in French).     Bălăşoiu v. Romania (no. 37424/97)           Friendly settlement The applicant, Georgeta Bălăşoiu, is a Romanian national who was born in 1949 and lives in Stefăneşti.   In July 1993 she lodged a criminal complaint, together with an application to join the proceedings as a civil party, against a number of police officers whom she accused of committing robbery and carrying out inadequate investigations. A medical examination of the applicant in July 1993 recorded numerous bruises on her face, arms, breasts and thighs and two fractured ribs. The police officers concerned were acquitted at first instance. However, in April 2001 the Military Court of Appeal held that they should have been convicted but that criminal proceedings against them were now time-barred. The applicant was awarded the equivalent at the material time of approximately EUR   1,600 for non-pecuniary damage.   The applicant alleged that she had been the victim of a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in that the authorities’ investigation into the treatment inflicted on her by agents of the State had been ineffective. She also complained, under Article 6 § 1 (right to a hearing within a reasonable time) of the Convention, of the excessive length of the criminal proceedings which she had joined as a civil party.   The case has been struck out following a friendly settlement in which the applicant is to be paid EUR   8,500 for any non-pecuniary and pecuniary damage and for costs and expenses. (The judgment is available only in French).   Notar v. Romania (no. 42860/98)           Friendly settlement The applicant, Gheorghe Notar, is a Romanian national who was born in 1979 and lives in Tg. Mures. He was arrested by the police on 7 July 1996 on suspicion of having been involved in a robbery. The case was discontinued in February 1997.   The conditions of his arrest and subsequent detention were in dispute between the parties. The applicant claimed that he had been beaten by the police while being transferred to the police station and during questioning. On the day of his arrest he was placed in the Mures Youth Shelter where he remained until 12 July. He alleged that he had had his head forcibly shaved, that he had been beaten, had had to endure cold showers and had been washed in diesel oil. The Romanian Government, which conceded that the applicant had undergone a number of hygienic and disinfection measures on his arrival at the shelter, denied any ill-treatment.   The applicant’s father, acting on behalf of his son, lodged a criminal complaint in respect of ill-treatment, false imprisonment and trespass. The subsequent proceedings were discontinued.   The applicant claimed to have been a victim of a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 13 (right to an effective remedy) of the Convention on account of the treatment he had suffered at the hands of the police and the wardens at the Mures Shelter and complained of the lack of an effective investigation capable of leading to the identification and punishment of those responsible. Relying on Article 5 §§ 1, 2, 3, 4 and 5 (right to liberty and security), he also complained that he had not been arrested and detained “lawfully” or “in accordance with a procedure prescribed by law”. He also alleged a breach of Article 6 § 1 (right to a fair trial) of the Convention. He complained further of an infringement of his right to be presumed innocent within the meaning of Article 6 § 2 of the Convention as his identity had been revealed during a television programme which had presented him as the perpetrator of an offence. Lastly, he complained of a breach of Article 34 (right of individual petition) of the Convention.   The case has been struck out following a friendly settlement in which the applicant is to receive EUR   40,000 plus EUR   875 for pecuniary damage and EUR   8,712.66 for costs and expenses.   The Romanian Government have also made the following declaration: “The Government undertake to initiate a process of reform of the existing stamp-duty legislation so that civil actions for damages for treatment contrary to Article 3 are exempted therefrom.   “The Government will take the necessary measures to inform the police forces of the appropriate conduct to be observed in order to ensure respect for the presumption of innocence within the meaning of Article 6 paragraph 2 of the Convention. “The Government will continue to make efforts in the area of protecting children in distress in accordance with their undertakings given in the legislation and the strategies adopted at national level (Government ordinance no. 26/1997 on the protection of children in distress, approved by Law no. 108/1998, and Government decision no. 539 of 7 June 2001 on the strategy for the protection of children in distress) which entirely replace the legislation in force at the material time.   “The Government consider that the supervision, by the Committee of Ministers of the Council of Europe, of the enforcement of the Court’s judgment constitutes an appropriate mechanism for ensuring that progress will continue to be made in this area.” (The judgment is available only in French).                     Just satisfaction Paulescu v. Romania (no. 34644/97)           Friendly settlement The applicant, Ana Maria Paulescu, is a Romanian national who was born in 1911 and lives in Lausanne (Switzerland). She used to own property in Bucharest composed of two flats and adjoining land. The property was nationalised by the State in 1950. The applicant had lodged an application with the European Court of Human Rights complaining, among other things, of an infringement of her right to the peaceful enjoyment of her possessions.   In a judgment of 10 June 2003 a Chamber of the Court held that there had been a violation of Article 1 of Protocol No. 1 (protection of property) and reserved the question of the application of Article 41 (just satisfaction) which was not ready for decision.   The case has been struck out following a friendly settlement in which the applicant is to receive EUR   120,000 for non-pecuniary and pecuniary damage and for costs and expenses. (The judgment is available only in French).   Surugiu v. Romania (no. 48995/99)           Violation of Article 8 The applicant, Mitica Surugiu, is a Romanian national who was born in 1958 and lives in Fălticeni.   In February 1995 his company was granted title to land adjoining his house by a final court decision. The decision was not enforced by the local land commission, which issued a third party with a property title over part of the land, including the land on which the applicant’s house stood. M.O. and members of his family often went into the applicant’s yard to cut or gather grass, unload carts of manure, or threaten and insult him, sometimes armed with sticks.   Mr Surugiu lodged six complaints of trespass on domestic premises and brought an action seeking to return home after having been obliged to move when M.O. and his family barred him access to his house. The proceedings were all discontinued. Following one of the complaints the applicant was ordered to pay an administrative fine on 18 May 2001 of the equivalent of four euros at the material time.   In the meantime, in October 1999, the Romanian courts revoked M.O’s title to the land adjoining the building occupied by the applicant. Mr Surugiu’s company was given possession of the land in October 2000.   The applicant complained of the authorities’ failure to take action to stop the interference by third parties with his right to respect for his home guaranteed by Article 8 (right to respect for private and family life) of the Convention. Additionally, relying on Article 1 of Protocol No.   1 (protection of property), he complained of the resulting interference with his right to the peaceful enjoyment of his property.   The Court noted that the interference with the applicant’s enjoyment of his home lasted approximately five and a half years, during which his complaints had resulted in a discontinuation of the proceedings despite the production of witness statements to the effect that M.O. intended to demolish the applicant’s house and the existence of four final decisions confirming his company’s title to the land in question.   Even supposing that the authorities’ failure to take action could be explained by the fact that a third party had been granted a property title over the land in question, it appeared that even after that title had been revoked by a final judgment the authorities had failed to take prompt measures to give the applicant possession of his land and put a stop to the repeated interference with the exercise of his right guaranteed by Article 8. On that point the Court found it particularly striking that it was only one and a half years after the third party’s title had been revoked that an administrative penalty was imposed on him, whereas his infringements of the applicant’s right to peaceful enjoyment of his home appeared to have been a daily occurrence.   In those circumstances the Court considered that the authorities had not taken the steps that could normally be expected of them to put a stop to the interference by third parties, over several years, with the applicant’s right to respect for his home. Accordingly, it concluded unanimously that there had been a breach of Article 8 of the Convention. Having regard to that conclusion, it considered that there was no need to examine the complaint under Article 1 of Protocol No. 1. Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Surugiu EUR   4,000 for non-pecuniary damage. (The judgment is available only in French).                 Violation of Article 5 §§ 3 and 4               No violation of Article 6 §§ 1 and 3(c) Mamaç and others v. Turkey (nos. 29486/95, 29487/95 and 29853/96) The applicants, Yavuz Mamaç, Necdet Dinçel and Nevzat Kalaycı, are Turkish nationals. They were born in 1976, 1960 and 1959 respectively.   As part of a police operation carried out against the illegal organisation DHKP/C (Revolutionary Party for the People’s Liberation/Front) Mr Dinçel and Mr Kalaycı were arrested on 14 April 1995 and taken into police custody. During the operation the police seized from the suspects’ homes home-made bombs and equipment used in the preparation of explosives. Mr Mamaç, who was suspected of assisting the organisation, was arrested and taken into police custody the next day. On 26 April 1995 the applicants were brought before a judge who ordered them to be detained pending trial. They were prosecuted under the Prevention of Terrorism Act.   On 7 October 1997 Izmir State Security Court convicted them of the offence with which they had been charged and sentenced Mr Mamaç to 14 years and four months’ imprisonment, Mr Dinçel to three years and nine months and Mr Kalaycı to 30 years. In a judgment of 1 July 1998 the Court of Cassation upheld their conviction.   Relying on Article 5 §§ 3 and 4 (right to liberty and security) of the Convention, the applicants complained of the length of their detention in police custody and of the lack of a remedy by which to challenge the lawfulness of their detention. They complained, under Article 6 §§ 1 and 3 (c) (right to a fair trial) of the Convention, that they had been unable to contact their lawyer while in police custody and that they had subsequently been able to meet her only in the presence of police officers.   The Court noted that Mr Dinçel and Mr Kalaycı had been kept in police custody for 12 days and Mr Mamaç for 11 days. Even if the activities of which they were accused had concerned a terrorist threat, the Court could not accept that it had been necessary to detain them for 11 or 12 days without any judicial intervention. Accordingly, it concluded, unanimously, that there had been a violation of Article 5 § 3.   With regard to the complaint that the applicants could not challenge the lawfulness of their police custody, regardless of whether the judge who ordered their detention pending trial ruled on this point, the Court reiterated that he had not intervened until the end of an 11 and 12-day period, which was inconsistent with the notion of “promptly”. It was clear from the Court’s case-law that there was no adequate and effective remedy in Turkish law by which a placement in police custody could be challenged for failing to meet the Convention requirements. The Court therefore concluded, unanimously, that there had been a violation of Article 5 § 4 of the Convention.   With regard to the complaint of unfairness of the proceedings, the Court noted that the applicants, who had been represented by a lawyer in the National Security Court and the Court of Cassation, had been able to challenge the evidence produced and the statements they had made during the investigation. The Court noted that Mr Mamaç and Mr Dinçel had not disputed before the Turkish authorities the reliability of the records indicating that they had talked to their lawyer. Regarding Mr Kalaycı, it observed that he had exercised his right to silence during the preliminary investigation. Although the applicants’ lawyer had been asked to give further details on this point, the Court noted that the information had given was insufficient. It also noted that the applicants had not submitted any evidence to show that their lawyer’s absence during their period in police custody had infringed their rights. Since it was clear from the material in the Court’s possession that the substance of the concept of fairness enshrined in Article 6 had not been infringed and that the rights of the defence had not been irretrievably prejudiced in a manner incompatible with the rights guaranteed to an accused under Article 6, the Court concluded, unanimously, that there had not been a violation of Article 6 §§ 1 and 3(c).   Under Article 41 (just satisfaction) of the Convention the Court awarded Mr Kalaycı and Mr   Dinçel EUR   4,000 each for non-pecuniary damage and Mr Mamaç EUR   3,700. It also awarded them EUR   2,000 jointly for costs and expenses. (The judgment is available only in French).   Tezcan Uzunhasanoğlu v. Turkey (no. 35070/97)                              Violation of Article 6 § 1 The applicant, Ayşe Tezcan Uzunhasanoğlu, is a Turkish national, born in 1963 and living in Istanbul. She was accused of aiding and abetting an illegal organisation, the Devrimci-Sol (Revolutionary-Left), and was sentenced to three years and nine months’ imprisonment by a state security court.   She alleged, in particular, that she had been denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted her. She further complained that the Court of Cassation had based its decision on witness statements taken at the police station, which the witnesses subsequently repudiated as having been made under duress. The applicant finally contended that the Court of Cassation had not respected the principles of an adversarial procedure or respect for equality of arms and had not held a hearing.   Finding that the applicant’s fears as to the state security court’s lack of independence and impartiality could be regarded as objectively justified, the Court held, unanimously, that there had been a violation of Article   6 § 1. The Court further held, unanimously, that it was unnecessary to examine the applicant’s other complaints under Article 6 and that a finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered. The applicant was awarded EUR 3,000 for costs and expenses.   (The judgment is available only in English.)   ***   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.