ECHR: Chamber judgments of 22.07.2008

Press release issued by the Registrar - 22.07.2008

Chamber judgments concerning 
Finland, Hungary, Italy, Poland, Portugal, Romania, Russia, Slovakia, Spain, 
Turkey, and Ukraine

The European Court of Human Rights has today notified in writing the following 41 Chamber judgments, none of which are final.

Repetitive cases and length-of-proceedings cases, with the Court's main finding indicated, can be found at the end of the press release.

Violation of Article 6 § 1 (fairness)

Hannu Lehtinen v. Finland (no. 32993/02)

Kallio v. Finland (no. 40199/02)

The applicants are two Finnish nationals. Hannu Juhani Lehtinen was born in 1959 and lived in Siltakylä (Finland). He died on 30 September 2005. Pentti Antton Kallio was born in 1953 and lives in Kaarina (Finland).

Both cases concerned the unfairness of tax surcharge proceedings brought against the applicants as, in particular, the administrative courts refused to hold an oral hearing and to hear their testimonies or those of witnesses, in breach of Article 6 §§ 1 and 3 (d) (right to a fair hearing) of the European Convention on Human Rights.

The European Court of Human Rights found that, in the circumstances of the applicant's cases, where the crucial question had been the credibility of the applicants' and witnesses statements, a direct assessment of their evidence given in person had been necessary. Therefore, the Court held unanimously that in both cases there had been a violation of Article 6 § 1 of the Convention on account of the refusal to hold an oral hearing in the Administrative Court, and that it was not necessary to examine separately the remainder of the applicants' complaints under Article 6. The Court awarded 3,000 euros (EUR) in each case in respect of non-pecuniary damage, and EUR 8,000 to Mr Lehtinen's heirs and EUR 5,000 to Mr Kallio for costs and expenses. (The judgments are available only in English.)

Violation of Article 8

Ćwiertniak v. Poland (no. 26846/05)

The applicant, Wojciech Ćwiertniak, is a Polish national who was born in 1969 and lives in Zamość (Poland).

In September 2003 Mr Ćwiertniak was convicted of a series of robberies and sentenced to ten years' imprisonment. The case concerned, in particular, the Zamość prison authorities' alleged censorship of the applicant's correspondence with the European Court, in breach of Article 8 (right to respect for correspondence).

The Court recalled that it had held on many occasions that as long as the Polish authorities continued the practice of marking detainees' letters with the "censored" stamp, it had no alternative but to presume that those letters had been opened and their contents read. Noting that the censorship of a convicted person's letter to the Court had been contrary to domestic law, the Court therefore held unanimously that there had been a violation of Article 8 concerning the interference with the applicant's correspondence. (The judgment is available only in English.)

Violation of Article 5 § 3

Drozdovs v. Poland (no. 35367/05)

Makowski v. Poland (no. 41012/05)

The applicants are Igors Drozdovs, a Latvian national, who was born in 1965 and is presently detained in Gdańsk and, Andrzej Makowski, a Polish national, who was born in 1974 and lives in Mysłowice (Poland).

Mr Drozdovs was arrested in May 2001 and charged with robbery as a member of an organised criminal gang. He was convicted as charged in May 2006 and sentenced to seven years' imprisonment.

Suspected of, in particular, robbery, kidnapping, fraud and forgery carried out in an organised criminal group, Mr Makowski was arrested in Spain and extradited to Poland in April 2003. He was released in December 2006 and, as the proceedings are still pending against him, is currently under police supervision.

Both cases concerned the applicants' complaint about the excessive length of their pre-trial detention. They relied, in particular, on Article 5 § 3 (right to liberty and security).

The Court held unanimously that in both cases there had been a violation of Article 5 § 3 on account of the excessive length of detention, which amounted to five years and two days in the case of Mr Drozdovs and three years, seven months and five days in the case of Mr Makowski. In respect of non-pecuniary damage, the Court awarded EUR 2,000 to Mr Drozdovs and EUR 1,000 to Mr Makowski. (The judgments are available only in English.)

Violation of Article 6 §§ 1 and 3 (c)

Panasenko v. Portugal (no. 10418/03)

The applicant, Oleksandr Panasenko, is a Ukrainian national who was born in 1975.

At the time when his application was lodged he was serving a prison sentence in Coimbra. He complained that the proceedings which had led to his being sentenced to 21 years' imprisonment for the murder of a taxi driver had been unfair. He relied on Article 6 (right to a fair trial).

The Court held unanimously that there had been a violation of Article 6 §§ 1 and 3 (c) taken together on account of the fact that the applicant was denied legal assistance and access to the Supreme Court. It awarded Mr Panasenko EUR 3 000 for non-pecuniary damage. (The judgment is available only in French.)

Violation of Article 6 § 1 (fairness)

Barrenechea Atucha v. Spain (no. 34506/02)

The applicant, Ernesto Barrenechea Atucha, is a Spanish national who was born in 1929 and lives in Bilbao.

The case concerned an appeal by the applicant against the Spanish authorities' decision ordering the suspension of work at the quarry he owned. When his appeal was dismissed, the applicant appealed to the Supreme Court on points of law. That appeal was declared admissible in October 1995, but in a judgment of 17 May 2001 the Supreme Court dismissed it on the ground that the applicant had not satisfied the conditions of admissibility. He submitted an amparo appeal to the Constitutional Court, but without success. Relying on Article 6 § 1 (right to a fair trial) and Article 13 (right to an effective remedy), the applicant submitted that the way the Supreme Court and the Constitutional Court had interpreted the provisions governing appeals on points of law had deprived him of the right of access to a court.

The Court held unanimously that there had been a violation of Article 6 § 1. It held that no separate issue arose under Article 13 and awarded the applicant EUR 5,000 for non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available only in French.)

Violation of Article 6 § 1 (fairness)

Gómez de Liaño y Botella v. Spain (no. 21369/04)

The applicant, Javier Gómez de Liaño y Botella, is a Spanish national who was born in 1948 and lives in Madrid.

The applicant was a judge in the no. 1 central investigation division of the Audiencia nacional. In the course of criminal proceedings in which he was the investigating judge he was the subject of a complaint in which the defendants alleged that he abused his office. The applicant challenged for bias the court charged with examining the complaint. The challenge was rejected and the applicant was convicted of abuse of office, fined, disqualified from public service, dismissed from his post and debarred from work as a judge for 15 years. He complained that the Supreme Court which had convicted him had not been impartial because the three judges on the bench at his trial had already had to make a ruling in the case when they upheld his indictment on appeal. Among other provisions, he relied on Article 6 §§ 1 (right to a fair trial) and 2 (presumption of innocence).

The Court held unanimously that there had been a violation of Article 6 § 1 and ruled that it was not necessary to examine separately the complaint under Article 6 § 2. It awarded the applicant EUR 5,000 for non-pecuniary damage. (The judgment is available only in French.)

Violation of Article 5 § 3

Violation of Article 6 § 1 (length)

Abdullah Yılmaz v. Turkey (no. 10512/02)

The applicant, Abdullah Yılmaz, is a Turkish national who was born in 1963 and lives in Batman (Turkey).

After being wounded in a firefight with the security forces in June 1995 the applicant was taken into police custody. He was then remanded in custody on suspicion of belonging to an illegal organisation, the PKK (Workers' Party of Kurdistan), and charged with separatism. Mr Yılmaz was ultimately found guilty of the charges against him and given a death sentence which was commuted to life imprisonment in April 2002. He complained in particular of the excessive length of his pre-trial detention and of the criminal proceedings against him. He relied on Article 5 § 3 (right to liberty and security) and Article 6 § 1 (right to a fair trial within a reasonable time).

The Court held unanimously that there had been a violation of Article 5 § 3 on account of the length of time – nearly five years and ten months – the applicant had spent in pre-trial detention. It further held unanimously that there had been a violation of Article 6 § 1 on account of the length of the proceedings, which had lasted nearly six years and ten months. The Court awarded Mr Yılmaz EUR 5,500 for non-pecuniary damage. (The judgment is available only in French.)

(3rd applicant) No violation of Article 3 (treatment)

(3rd applicant) Violation of Article 3 (investigation)

(3rd applicant) Violation of Article 5 § 3

(All applicants) Violation of Article 5 §§ 1 (c), 4 and 5

Tonka and Others v. Turkey (no. 11381/02)

The applicants, Alaattin Tonka, Mehmet Sabır Özdemir and Mithat Yılmaz, are three Turkish nationals who were born in 1966, 1972 and 1964 respectively and live in Diyarbakır and Mersin (Turkey).

Mr Tonka and Mr Özdemir were arrested and taken into police custody in September 2000 on suspicion of belonging to an illegal organisation, Hizbullah (the Party of God). When Mr Yılmaz was arrested in March 2001 on suspicion of the same offence, an altercation took place between him and the arresting officers. He underwent a number of medical examinations, which revealed the traces of injuries he had sustained.

Relying on Article 5 (right to liberty and security), the applicants complained in particular that they had been sent back to police headquarters to be questioned after being placed in pre-trial detention. They further complained of the length of their detention and of the lack of a remedy whereby they could obtain compensation. In addition, Mr Yılmaz alleged that he had been ill-treated while in police custody at police headquarters and complained that there had been no effective investigation of his allegations. He relied on Article 3 (prohibition of inhuman or degrading treatment).

With regard to Mr Yılmaz, the Court considered that the information available to it did not enable it to establish beyond a reasonable doubt that he had been subjected to torture while in police custody, and held unanimously that there had been no violation of Article 3 in that respect. The Court observed that an investigation had been opened by the Mersin public prosecutor and that the applicant, who declared that he had been tortured, had been interviewed on 28 November 2001. However, it had no information about the subsequent progress of the investigation. Having regard to the lack of an investigation and/or criminal proceedings capable of providing a plausible explanation concerning the origin of the injuries recorded on the applicant's person, the Court held that there had been a violation of Article 3. The Court further held that there had been a violation of Article 5 § 3 on account of the length of time Mr Yılmaz had spent in police custody.

With regard to all the applicants, the Court observed that in similar cases it had previously found violations of the Convention on account of the fact that applicants had been made available to the security forces for questioning after being placed in pre-trial detention, with a view to circumventing the legislation in force concerning the maximum duration of detention in police custody, and on account of the lack of effective judicial review. It accordingly held unanimously that there had been a violation of Article 5 §§ 1 (c) and 4. Lastly, the Court noted that owing to the circumstances of the case the applicants had been unable to avail themselves of the statutory provisions providing for compensation to be paid to persons arrested unlawfully or detained without justification, contrary to Article 5 § 5. It awarded EUR 8,000 to Mr Yılmaz and EUR 3,000 each to Mr Tonka and Mr Özdemir. (The judgment is available only in French.)