Mensenrechtenhof veroordeelt Nederland voor behandeling tbs-veroordeelde (en)

The European Court of Human Rights has today notified in writing the following nine Chamber judgments, none of which are final [1].

Violation of Article 6 § 1

Gika and Others v. Greece (application no. 394/03)

Grylli v. Greece (no. 1985/03)

Zafiropoulos v. Greece (no. 41621/02)

The applicants are all Greek nationals who live in Athens. Irini Gika, Vassiliki Grigoratou, Eleftheria Karavari, Despina Vagena-Vouzouka, Vassiliki Traintafyllou and Pagona Silira-Papahatzaki were born in 1940, 1938, 1935, 1943, 1939 and 1934 respectively. Eftychia Grylli and Georgios Zafiropoulos were born in 1925 and 1937 respectively.

In each of the cases the applicants complained of the length and unfairness of civil and administrative proceedings to which they had been parties, and of an infringement of their right to the peaceful enjoyment of their possessions. They relied on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property) to the Convention. In the cases of Grylli v. Greece and Zafiropoulos v. Greece the applicants also alleged a violation of Article 13 (right to an effective remedy).

The European Court of Human Rights declared the applications admissible in respect of the length-of-proceedings complaints only.

It noted that the proceedings in question, involving three levels of jurisdiction, had lasted approximately seven years and seven months in the case of Gika and Others v. Greece, almost eight years and one month in the case of Grylli v. Greece and six years and 19 days in the case of Zafiropoulos v. Greece. Having regard to the circumstances of the cases, it considered that such periods were excessive and did not meet the "reasonable time" requirement. The Court accordingly held unanimously in each case that there had been a violation of Article 6 § 1 of the Convention.

Under Article 41 (just satisfaction), the Court awarded 6,000 euros (EUR) for non-pecuniary damage to the applicants jointly in Gika and Others v. Greece; EUR 1,200 for non-pecuniary damage and EUR 500 for costs and expenses to Ms Grylli; and EUR 1,000 for non-pecuniary damage and EUR 500 for costs and expenses to Mr Zafiropoulos. (The judgments are available only in French.)

Bove v. Italy (no. 30595/02) Violation of Article 8

The applicant, Luigi Bove, is an Italian national who was born in 1965 and lives in Naples (Italy).

The applicant has a daughter, C., who was born in 1995. Since the child's mother prevented the applicant from seeing her, he instituted proceedings for the determination of access arrangements. In September 1996 the Naples Juvenile Court gave the mother custody of the child and authorised the applicant to see her two afternoons a week and every other Sunday.

Further to a declaration by the child's mother that the applicant's father and two of the applicant's friends had sexually assaulted the child, the court made a temporary emergency order on 22 June 2000 limiting the contact between the applicant and his daughter to two weekly meetings on the social services' premises in the presence of a social worker. In January 2001 his access rights were further limited to one afternoon a week.

In April 2001 the criminal proceedings against the applicant's friends were discontinued. The applicant twice applied for an order depriving the child's mother of parental responsibility and giving him custody of the child or the possibility of free access to her. In the first set of proceedings the Court of Appeal on 30 January 2003 arranged for the gradual resumption of contact between the applicant and his daughter, but the child refused to see him. In the second set the Court of Appeal ordered a psychologist to make a final attempt to arrange meetings between the father and daughter, but the child again refused.

In spite of those decisions, the applicant was not given the opportunity to see his daughter. Their last meeting took place in September 2002 under supervision, with the child's mother also present.

Relying on Article 8 (right to respect for family life), the applicant complained of the refusal by the Naples Juvenile Court to grant him custody of his daughter, and of the difficulties encountered in exercising his access rights. He also alleged a violation of Articles 13 (right to an effective remedy) and 14 (prohibition of discrimination) taken together with Article 8 of the Convention.

The Court noted that, after its decision of 22 June 2000, the Naples Juvenile Court had not intervened to ensure that the supervised meetings could take place as planned. Although the criminal proceedings against the applicant's two friends had been discontinued and his father had died in January 2003, contact between the applicant and his daughter had not resumed. On 30 January 2003 the Naples Court of Appeal had authorised the gradual resumption of contact but its decision had not been enforced.

The applicant had not seen his daughter since September 2002 and the authorities had not set a schedule for any further meetings. The difficulties in arranging visits were, admittedly, partly attributable to the animosity between C.'s mother and to the child's reluctance to meet her father. However, the Court did not accept that the applicant could be held responsible for the ineffectiveness of the relevant decisions or measures in actually bringing about contact. The inaction of the authorities had forced the applicant to have constant recourse to a succession of time-consuming and ultimately ineffectual remedies to enforce his rights.

In conclusion, the Court considered that the failure to enforce the applicant's access rights since September 2002 had infringed his right to respect for his family life. It accordingly held by six votes to one that there had been a violation of Article 8 of the Convention as regards that part of the complaint.

As to the Italian authorities' refusal to grant the applicant custody of his daughter, the Court considered that their decisions had been taken in the child's interests and had been based on relevant reasons. It therefore held that there had been no violation of Article 8 as regards the refusal to give the applicant custody of the child.

The Court found it unnecessary to examine the complaints under Articles 13 and 14 as no separate issue arose under those provisions. It considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR 3,000 for costs and expenses. (The judgment is available only in French.)

Nakach v. the Netherlands (no. 5379/02) Violation of Article 5 § 1

The applicant, Bensaid Nakach, is a Moroccan national who was born in 1944. At the time of the events complained of, he was detained in a secure institution, the Forensic Psychiatric Centre "Veldzicht" in Balkbrug, the Netherlands. In July 2002 he was transferred to the secure institution "De Kijvelanden" in Poortugaal, near Rotterdam.

On 7 February 1994 the applicant hit his wife, Ms K., on the head, the shoulders and the back with the blunt edge of a meat cleaver, choked her and kicked her in the face. Ms K. was injured but survived.

On 10 October 1994 Breda Regional Court convicted the applicant of attempted manslaughter. In the light of a psychiatric report which found the applicant's mental powers to be deficient and the chance of his re-offending to be high, it sentenced him to one year's imprisonment and ordered his placement at the Government's disposal (terbeschikkingstelling van de regering) with confinement in a secure institution. The applicant appealed unsuccessfully. The placement order was prolonged for an additional two years in September 1998 and then again on 29 September 2000.

The applicant appealed to the Arnhem Court of Appeal (gerechtshof). Following a hearing, held on 9 April 2001, his appeal was dismissed. The applicant's counsel wrote to the Court of Appeal asking for a copy of the official record of the hearing, but was informed that "no official records are usually made of hearings of the criminal division concerning prolongations of placements at the Government's disposal".

The applicant alleged, in particular, that there had been a failure to follow a procedure prescribed by law, no official record having drawn up of a hearing held in relation to a request by the competent authority to prolong his detention on mental health grounds. He relied on Article 5 § 1 (right to liberty and security).

The European Court of Human Rights found that there was no reason to doubt that, had it had jurisdiction to do so, the Netherlands Supreme Court would have found the practice of the review chamber of the Arnhem Court of Appeal to be in violation of domestic procedure. Concluding that the procedure prescribed by domestic law was not followed, the Court held, unanimously, that there had been a violation of Article 5 § 1 and that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. The Court awarded the applicant EUR 1,840.72 for costs and expenses. (The judgment is available only in English.)

Violation of Article 6 § 1

Teteriny v. Russia (no. 11931/03) Violation of Article 1 of Protocol No. 1

The applicants, Anatoliy Grigoryevich Teterin and Tamara Vasilyevna Teterina, are Russian nationals who were born in 1954 and 1955 respectively, and live in Syktyvkar in the Komi Republic (Russia). They are both retired judges.

In a judgment dated 26 September 1994 Ezhvinskiy District Court allowed Mr Teterin's claim against the Yemva Town Council for provision of State housing - a flat measuring no less than 65 square metres - for which he was eligible as a judge. No appeal was brought against the judgment and it became final and enforceable ten days later. Enforcement proceedings were instituted.

On 7 July 2003, however, the enforcement proceedings were discontinued, given the council's lack of funds for the construction or purchase of housing.

On 19 January 2004 Yemva Town Council offered Mr Teterin a two-room flat of 25 square metres with central heating. It noted that no state housing had been constructed since 1994 and that it was therefore not in a position to offer a flat with full amenities. The applicants did not accept the offer. On 17 December 2004 the enforcement proceedings were re-opened and are now pending. The judgment of 26 September 1994 has not been enforced to date.

The applicants complained about the continued failure to enforce the judgment of 26 September 1994. They relied on Article 6 (access to court) and Article 1 of Protocol No. 1.

The European Court of Human Rights unanimously declared the complaints concerning the continued failure to enforce a final judgment in Mr Teterin's favour admissible and the remainder of the application inadmissible.

The Court noted that the judgment of 26 September 1994 had not been enforced in its entirety and that the offer made by Yemva Town Council in 2004 did not meet the terms of that judgment. By failing for years to take the necessary measures to comply with a final judicial decision, the Russian authorities had deprived the provisions of Article 6 § 1 of all useful effect. The Court therefore held, unanimously, that there had been a violation of Article 6 § 1.

The Court noted that the judgment of 26 September 1994 required the town council to issue Mr Teterin with an occupancy voucher in respect of any flat satisfying the court-defined criteria. On the basis of the voucher, a so-called "social tenancy agreement" would have been signed between the competent authority and the applicant, acting as the principal tenant on behalf of himself and the members of his family. Under the terms of a "social tenancy agreement" the applicant would have had a right to possess and make use of the flat and, under certain conditions, to privatise it.

The Court was satisfied that the applicant's claim to a "social tenancy agreement" was sufficiently established to constitute a "possession" within the meaning of Article 1 of Protocol No. 1.

The fact that it was impossible for the applicant to obtain the execution of the judgment of 26 September 1994 for more than ten years constituted an interference with his right to peaceful enjoyment of his possessions, for which the Russian Government had not provided any plausible justification. The Court therefore held, unanimously, that there had been a violation of Article 1 of Protocol No. 1.

The Court also held that Russia was to secure, by appropriate means, the enforcement of the award made by the domestic court, and, in addition, to pay Mr Teterin EUR 3,000 in respect of non-pecuniary damage. (The judgment is available only in English.)

Violation of Article 5 § 3

Temel and Taşkın v. Turkey (no. 40159/98) Violation of Article 6 § 1

The applicants, Agit Temel and Musa Taşkın, are Turkish nationals who were born in 1967 and 1943 respectively and live in Hakkari (Turkey).

On 19 April 1994 Mr Taşkın was arrested by police officers in the course of an investigation opened after a person had claimed to have bought weapons through the applicants. On 25 April 1994 Mr Temel gave himself up to the police. During the investigation, Kalashnikov-type firearms and ammunition were confiscated at the site indicated by Mr Temel and a revolver was seized at Mr Taşkın's home.

The applicants and two others were charged with firearms trafficking, an offence under section 12 of Law no. 6136, and with assisting an armed gang, an offence under Article 169 of the Criminal Code. The applicants repeatedly applied to be released during the proceedings but all their applications were refused by the Diyarbakır State Security Court.

In a judgment of 19 January 1998 the State Security Court acquitted the applicants of assisting an armed gang and found them guilty of firearms trafficking. It sentenced them each to ten years' imprisonment and a fine of 2,062,500 Turkish liras. The applicants were released on 6 May 1998. The Court of Cassation upheld their convictions on 14 May 1998.

The applicants complained under Article 5 § 3 (right to liberty and security) of the Convention of the length of their detention pending trial. They further submitted, relying on Article 6 § 1 (right to a fair hearing within a reasonable time), that the State Security Court was not independent or impartial because one of its members was a military judge, and that their case had not been heard within a reasonable time.

The Court observed that the applicants had been in pre-trial detention for approximately three years and nine months. It appeared that the orders by the Turkish courts for their continued detention had nearly always been worded in identical, not to say stereotyped, terms. In those circumstances, the Court held unanimously that there had been a violation of Article 5 § 3.

Furthermore, as it had done in many similar cases, the Court considered that the applicants' concerns as to the State Security Court's lack of independence and impartiality could be regarded as objectively justified. It therefore held unanimously that there had been a violation of Article 6 § 1 as regards the unfairness of the proceedings.

Lastly, the Court noted that the proceedings in question had lasted four years and 20 days. Having regard to the circumstances of the case, it considered that such a period was excessive and did not meet the "reasonable time" requirement. The Court therefore held unanimously that there had been a violation of Article 6 § 1 as regards the length of the proceedings.

The Court awarded the applicants EUR 4,000 each for non-pecuniary damage and EUR 2,500 jointly for costs and expenses, less EUR 630 already received from the Council of Europe in legal aid. (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

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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.