EVRM-Hof veroordeelt Moldavië (rechtsgang), Portugal (onterechte onteigening), Turkije (weigering tot uitkering salarissen), Oekraïne (verbeurdverklaring door BTW-politie) (en)
The European Court of Human Rights has today notified in writing the following six Chamber judgments, none of which is final [1].
Repetitive cases (in which the Court has reached the same findings as in similar cases raising the same issues under the European Convention on Human Rights) can be found at the end of this press release.
No violation of Article 8
Schemkamper v. France (application no 75833/01) Violation of Article 13
The applicant, Andreas Schemkamper, is a German national aged 44. He is currently imprisoned in Toul Prison (France), where he has been serving a 20 year sentence for homicide since 1997.
In April 2001 the applicant applied to the judge responsible for the execution of sentences in Nancy to obtain special prison leave for a few hours within the town of Toul to visit his father, who had just suffered a series of mild heart attacks. The judge dismissed his application in view of the length of his sentence still to be served and the precedent that it would have created for the handling of applications for alternative sentences.
The applicant's parents visited their son on several occasions, having moved into a campsite near the prison: in 2001, the applicant's father visited him 19 times and his mother 20 times, and in 2002 they visited him 13 times. In addition, the applicant was authorised to take prison leave for family reasons on three occasions in 2003 so that he could see his father, who died in 2005.
The applicant alleged that the denial of his request for prison leave for serious family reasons had breached his rights under Article 8 (right to respect for private and family life) of the Convention. He further contended that he did not have an effective remedy, within the meaning of Article 13 (right to an effective remedy), to challenge that decision.
The Court reiterated that any detention which is lawful for the purposes of Article 5 of the Convention entailed by its nature a limitation on private and family life. However, it was an "essential part of a prisoner's right to respect for family life" that the prison authorities assist him in maintaining contact with his close relatives.
The Court observed that the applicant's parents had obtained a permanent right to visit, which they had exercised regularly, particularly in the case of his father, during the year in which the judge denied the request for prison leave. The state of health of the applicant's father had thus not been so serious as to prevent him from visiting his son. The applicant was also given leave three times in 2003 to see his father. The situation in 2001 had therefore not been so urgent as to justify granting exceptional prison leave, having regard to the length of the sentence.
In those circumstances, the Court found that the decision to deny the applicant prison leave in 2001 was not disproportionate to the legitimate aim pursued and that the competent authorities, in view of the specific circumstances of the case, had taken the measures that could be reasonably expected of them. It moreover observed that family contacts, however legitimate they may be, depended on the age and state of health of the family members in question. In view of the circumstances of the case, neither the age nor state of health of the applicant's father required an exceptional protection of such contacts. The Court accordingly concluded, unanimously, that there had been no violation of Article 8.
Turning to the complaint under Article 13, the Court noted that, at the relevant time, orders by the judge responsible for the execution of sentences upon applications for prison leave were characterised, by the law itself, as measures of judicial administration against which only the public prosecutor had a right of appeal to the criminal court. It therefore held, unanimously, that there had been a violation of Article 13.
The Court considered that the finding of a violation constituted in itself just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR 739.13 for costs and expenses. (The judgment is available only in French.)
Siddik Aslan and Others v. Turkey (no. 75307/01) No ruling on the merits
The applicants are Sıddık Aslan, Yasin Aslan, Türkan Aslan and Nihari Aslan who were born in 1960, 1952, 1965 and 1945, respectively, and live in Van (Turkey).
Ebuzeyt Aslan was Sıddık Aslan's elder brother and Türkan Aslan's husband. Halit Aslan was Yasin Aslan's cousin and Nihari Aslan's husband.
According to the applicants, on 7 September 2001 Ebuzeyt Aslan and Halit Aslan left for Beytüşşebap. Eight days later a relative was informed that the two men had been killed by village guards and soldiers in the village of Yeşilöz in the Dereyatağı area.
The Prosecutor's office in Beytüşşebap confirmed what had been said by the anonymous caller and stated that the place where the incident had taken place was in a dangerous area and that he could not therefore hand the bodies over to them. The Government denied the latter half of the statement.
On 21 September 2001 the Diyarbakır Branch of the Human Rights Association requested the authorities to investigate the deaths of the two men and for official identifications of the bodies and autopsies to be carried out.
According to the Government, on 12 September 2001, an armed clash between gendarme soldiers and terrorists took place in Dereyatağı which left three terrorists dead. The soldiers left the corpses in the area and covered them with stones to protect them from wild animals. The authorities subsequently visited the site on seven occasions to take photographs of the bodies and carry out autopsies. However, the bodies, allegedly those of Halit Aslan and Ebuzeyt Aslan, could not be found. It was assumed that the bodies had decomposed or been removed.
The applicants complained that two of their relatives had been unlawfully killed by the Turkish security forces in September 2001 and that the authorities failed to investigate the circumstances of their deaths. They relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment or punishment), 13 (right to an effective remedy) and 14 (prohibition of discrimination).
On 28 February 2005 the Government asked the Court to declare the application inadmissible in the light of new documents which they had submitted. It transpired from the documents that on 20 August 2004, Nihari Aslan, had made a statement at a police station that her husband Halit Aslan had fallen ill and died at their family home on 11 November 2003 and that the family had had him buried. According to her lawyers, Mrs Aslan was poor and needed to make the statement to obtain a death certificate to be able to claim a farming grant which had previously been paid to her late husband. They also added that the applicants had recently admitted that six or seven days after their relatives had been killed they had found the bodies and buried them. They stated that the applicants had been too afraid to divulge this information earlier but that they were now willing to assist the authorities to recover the bodies in order for them to establish their identities and carry out autopsies. The lawyers alleged that the indifference shown by the authorities was an attempt to mislead the Court and that in fact they had tried to cover up the murders.
Having regard to the new information, the Court considered it appropriate to address the Government's preliminary objection concerning the effectiveness of the criminal investigation.
It appeared from the documents submitted by the Government that the national authorities, particularly the Beytüşşebap Prosecutor, had taken every step within their power to find the bodies given the information they had. Their efforts were, however, seriously hampered by the actions of the applicants, who had buried the bodies. As for the applicants' fears, the Court observed that the applicants had not been afraid of making serious allegations both to the national authorities and to the Court.
Furthermore it found that the applicants' allegation that the authorities were trying to mislead the Court to be disingenuous, if not abusive, since the applicants themselves had mislead the Court. The authorities could not have provided any information about the identities of the three dead men when the applicants had already hidden their whereabouts. The Court therefore concluded that they had not remained passive faced with the applicants' allegations.
As regards the statement made by Nihari Aslan, to the effect that her husband had died on 11 November 2003 - and not in September 2001 as alleged in the application form - the Court found that the most appropriate forum to establish the true facts concerning that death, was before the national authorities.
The Court therefore decided, unanimously, to uphold the Turkish Government's preliminary objection and held that it could not consider the merits of the case as domestic remedies had not been exhausted. (The judgment is available only in English.)
Repetitive cases
In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention:
Violation of Article 6 § 1
Daniliuc v. Moldova (no. 46581/99) Violation of Article 1 of Protocol No. 1
The applicant, Ecaterina Daniliuc, is a Moldovan national who was born in 1962 and lives in Costeşti (Moldova).
She complained in particular, about the non-enforcement of two judgments in her favour in civil proceedings delivered on 6 October 1995 and 16 September 1996 and about the quashing of the judgment of 16 September 1996 following a request for annulment by the Moldovan Prosecutor General.
She relied on Article 6 § 1 (right to a fair hearing) and by Article 1 of Protocol No. 1 (protection of property).
The Court declared inadmissible the complaint about the quashing of the judgment as it was submitted out of time. The remainder of the application was declared admissible.
Concerning Article 6 § 1, the Court observed that it was not open to a State authority to cite lack of funds as an excuse for not honouring a judgment. The Court noted that the judgments in question were not enforced for periods varying between seven years and five months for the first judgment and two years and three months for the second, 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 Article 1 of Protocol No. 1.
It awarded the applicant EUR 100 for pecuniary damage and EUR 1,000 for non-pecuniary damage. (The judgment is available only in English.)
Carvalho Acabado v. Portugal (no. 30533/03) Violation of Article 1 of Protocol No. 1
The applicant, Maria José Carvalho Acabado, is a Portuguese national who is 90 years' old and lives in Estoril (Portugal).
She owned several plots of land that were expropriated in 1975 in connection with the land-reform policy. The legislation in question provided for the payment of compensation to those affected in an amount and under conditions that were still to be decided. In 2003 the Minister for Agriculture and the Minister of State for the Treasury fixed the amount of the final compensation to be paid to the applicant at approximately EUR 49,500 and she was also to receive nearly EUR 51,400 in interest. The applicant disputed the amount of the compensation in the Supreme Administrative Court. In May 2005 those proceedings were still pending and the applicant had yet to receive the compensation in question.
Relying on Article 1 of Protocol No. 1 (protection of property), the applicant complained that she had not received the final compensation to which she was entitled.
The Court observed that it had already heard similar cases concerning the compensation policy in respect of the nationalisations and expropriations carried out in Portugal in 1975 and had in each case found a violation of Article 1 of Protocol No. 1.
In the present case, it noted that the government securities had not yet been made available to the applicant by May 2005. In those circumstances it concluded, unanimously, that there had been a violation of Article 1 of Protocol No. 1 and awarded the applicant EUR 20,000 for pecuniary and non-pecuniary damage, and EUR 2,000 for costs and expenses. (The judgment is available only in French.)
Tütüncü and Others v. Turkey (no. 74405/01) Violation of Article 1 of Protocol No. 1
The applicants, Yılmaz Tütüncü, Mehmet Eneze and Nihat Yılmaz, are Turkish nationals living in Diyarbakır (Turkey).
They were employed by the Municipality of Diyarbakır, from 22 May 1998, 8 April 1997 and 17 June 1998 respectively, until 4 May 1999, when they were all made redundant by the municipal council, which failed to pay them their outstanding salaries, compensation in lieu of notice or severance pay based on length of service.
They complained to the employment tribunal, which, in a judgment of 11 November 1999, ordered the municipal council, among other things, to pay them compensation. However, despite their attempts to have the judgment enforced, the applicants have not received anything to date.
The applicants complained of the delay in receiving their redundancy payments and of the low rate of default interest on debts owed by the State. They relied on Article 1 of Protocol No. 1 (protection of property) and Article 13 (right to an effective remedy).
The Court noted that the municipal council had still not paid the compensation to the applicants, the Turkish Government had failed to provide any satisfactory explanation and the Municipality of Diyarbakır's financial problems could not justify such a failure.
Accordingly, it held, unanimously, that there had been a violation of Article 1 of Protocol No. 1 and that it was unnecessary to examine separately the complaint under Article 13 of the Convention. As the applicants had not submitted any claim for just satisfaction, even though they had been informed that they had a right to do so, the Court considered that it was unnecessary to make any award in that respect. (The judgment is available only in French.)
Violation of Article 6 § 1
Violation of Article 1 of Protocol No. 1
Terem Ltd, Chechetkin and Olius v. Ukraine (no. 70297/01)
The applicants are a Ukrainian company, Terem Ltd, and two Ukrainian nationals living in Kiev, Igor Chechetkin and Yevgeniy Olius. Mr Chechetkin and Mr Olius, who jointly own Terem Ltd, were born in 1967 and 1957 respectively.
In November 1999 the property and financial documents belonging to Terem Ltd were seized by the tax police. A major part of the property was declared to be "without an owner" by the Kiev Tax Police Department (KTPD) and in March 2000 Zhovtnevyy District State Administration began to sell the property.
On 6 June 2003 Kiev Commercial Court awarded compensation to Terem Ltd for the material and moral damage caused by the actions of the tax police.
In December 2004 the Treasury transferred a certain sum to the applicant's bank account obtained from the sale of the confiscated property. The applicant was however informed that further enforcement could not be conducted due to the lack of appropriate allocations in the State Budget of Ukraine for the years 2004 and 2005.
The applicants complained about the unlawful confiscation of their property and lack of access to court to challenge the actions of the tax police. They further complained about the non-enforcement of the judgment given in favour of Terem Ltd on 6 June 2003. They relied on Articles 6 (right to a fair hearing) and 13 (right to an effective remedy) and Article 1 of Protocol No. 1 (protection of property).
The Court, unanimously, declared Terem Ltd's complaint concerning the non-enforcement of the judgment of 6 June 2003 admissible, and the remainder of the application inadmissible.
Concerning Article 6 § 1, the Court observed that it was not open to a State authority to cite lack of funds as an excuse for not honouring a judgment. The Court noted that the judgment in question was not enforced for nearly two years, a situation for which the Government had not provided any plausible justification. The Court therefore held, unanimously, therefore, that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1.
It also held that the Ukrainian State was to pay the applicant the outstanding amount of the judgment debt of 6 June 2003 still owed to it. (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).
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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.