Press release issued by the Registrar - 25.11.2008

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25.11.2008

Press release issued by the Registrar

Lithuania, Romania, Serbia and Turkey

The European Court of Human Rights has today notified in writing the following 15 Chamber judgments, none of which are final¹.

Repetitive cases² and one length-of-proceedings case, with the Court’s main finding indicated, can be found at the end of the press release.

Jucius and Juciuvienė v. Lithuania (application no. 14414/03)

The applicants, Marijus Jucius, and his wife, Gertrūda Juciuvienė, are Lithuanian nationals who were born in 1966 and 1967 respectively, and live in Mažeikiai (Lithuania).

In April 1999 Mr Jucius’ sister and her partner died and the applicants were awarded temporary custody of their nieces, RŠ and DŠ, at that time four years’ old and six months’ old. The girls’ grandparents subsequently made applications to adopt the girls; the applicants submitted a counterclaim. In August 2002 the domestic courts decided to grant permanent custody to the grandparents on the grounds that they had better financial and living conditions, despite RŠ’s wish to remain with her “parents” (the applicants). However, when the bailiff attempted to execute that decision in March 2003, RŠ refused to leave the applicants. DŠ was taken to her grandparents. Given RŠ’s resistance to being placed in the permanent custody of her grandparents, it was decided to reopen the proceedings. The decision of August 2002 was subsequently overruled and the sisters were separated, RŠ having expressed her desire to stay with the applicants and DŠ with her grandparents.

The case concerned the applicants’ complaint about deficiencies in the decision-making process by which permanent custody of the girls was originally awarded to their grandparents. They relied on Article 8 (right to respect for private and family life) and Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.

The European Court of Human Rights considered that the proceedings had been of crucial importance for the applicants and had involved an assessment of their character as well as of their nieces’ wishes. To ensure the best interests of the girls, it had therefore been essential that the applicants and their nieces be given the opportunity to be heard and fully participate in a hearing. The applicants’ appeal had, however, been determined by way of a written procedure. Furthermore, the domestic courts had been forced into amending their decisions and ruling partly in favour of the applicants only on account of RŠ’s continued resistance. The Court recalled that the mere passing of time should not determine future relations between parent and child. The Court therefore held unanimously that there had been a violation of Article 8. Given that finding, it further held that it was unnecessary to make a separate examination under Article 6 § 1 with regard to the written nature of the appeal procedure. The Court awarded the applicants, jointly, 5,000 euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)

Violation of Article 6 § 1 (fairness)

Švenčionienė v. Lithuania (no. 37259/04)

The applicant, Jūrate Švenčionienė, is a Lithuanian national who was born in 1974 and lives in Kaunas (Lithuania).

The case concerned Ms Švenčionienė’s complaint that she was not able to attend an appeal hearing in divorce proceedings. She relied on Article 6 § 1 (right to a fair hearing).

The Court observed that the notice about the forthcoming appeal hearing in the applicant’s case had been sent to her at the wrong address. That shortcoming in the proceedings had been aggravated by the fact that her husband had been notified of the hearing and had been able to participate in it and present his arguments, without the applicant having been able to comment. The appeal court had then overruled the first-instance judgment in the husband’s favour and reduced the compensation initially awarded to her. The Court therefore considered that the applicant’s right to equality of arms and adversarial proceedings had been breached and held unanimously that there had been a violation of Article 6 § 1. The Court awarded Ms Švenčionienė EUR 2,800 in respect of non-pecuniary damage. (The judgment is available only in English.)

Violation of Article 1 of Protocol No. 1

Toşcuţă and Others v. Romania (no. 36900/03)

The applicants are seven Romanian nationals who were born in 1943, 1945, 1956, 1933, 1959, 1922 and 1945 and live in Bucharest.

The applicants complained in particular that the domestic courts had annulled their title deeds in respect of plots of land for which they had not received any compensation. They relied on Article 1 of Protocol No. 1 (protection of property).

The Court found that the annulment of the applicants’ title deeds had been based exclusively on acts attributable to the Romanian authorities and that no compensation or equivalent land had been granted. Accordingly, even supposing that the deprivation of property could be shown to have been in the public interest, the Court considered that the applicants had borne an individual and excessive burden as a result of having been deprived not only of their right to the peaceful enjoyment of two plots of land, but also of any compensation or redress in that connection. The Court thus held, unanimously, that there had been a violation of Article 1 of Protocol No. 1. It awarded the applicants EUR 4,000 for costs and expenses. As to damage, it considered that the question of the application of Article 41 (just satisfaction) was not ready for decision. (The judgment is available only in French.)

Violation of Article 1 of Protocol No. 1

Kostic v. Serbia (no. 41760/04)

The applicants, Nedeljko Kostić, and his wife, Zorka Kostić, are Serbian nationals who were born in 1947 and live in Belgrade.

Relying on Article 1 of Protocol No. 1 (protection of property), the applicants complained about the non-enforcement of a demolition order awarded in their favour concerning a  
co-owned house.

Noting in particular that the proceedings at issue had lasted more than four years and seven months, the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1. The Court held that Serbia should ensure enforcement of the decisions in the applicants’ favour and awarded them, jointly, EUR 4,000 in respect of non-pecuniary damage. (The judgment is available only in English.)

Violation of Article 3 (treatment and investigation)

(1^st and 2^nd applicants) Violation of Article 6 §§ 1 and 3

Dağdelen and Others v. Turkey (nos. 1767/03, 14246/04 and 16584/04)

The four applicants, Önder Dağdelen, Sami Özbil, Ergül Çiçekler and Murat Telli, are Turkish nationals who were born in 1978, 1977, 1976 and 1978 respectively.

In connection with an investigation into a bomb plot, the applicants were arrested and held in police custody at the end of April and the beginning of May 1996. Some confessed during that time. Two medical reports were drawn up during and after their period in police custody, and all the applicants were found to have sustained injuries. In 1997 police officers who had taken part in the applicants’ interrogations were charged with extracting confessions using torture. The Assize Court ruled in 2002 that the prosecution of the police officers was time-barred. The first three applicants were eventually convicted in 2003 and sentenced to life imprisonment for an attempt to undermine the constitutional order, whilst the last applicant was granted the benefit of amnesty legislation.

The applicants complained, in particular, of torture by police officers while in police custody, of the outcome of the criminal proceedings brought against the police officers concerned and of the length of those proceedings. Önder Dağdelen and Ergül Çiçekler also complained of the use by the court during their trials of confessions that had been extracted from them using torture while they were in police custody, when they had had no access to a lawyer, and of the length of the criminal proceedings against them. The applicants relied, in particular, on Article 3 (prohibition of inhuman and degrading treatment), Article 6 § 1 (right to a fair trial within a reasonable time), Article 6 § 3 (c) and Article 13 (right to an effective remedy).

The Court considered that the report drawn up at the end of the applicants’ period in police custody, without providing a final conclusion on the matter, nevertheless tended to lend credibility to their allegations that they had been suspended by their arms. The Government had given no explanation as to the cause of the injuries found on the applicants, who had been detained for between seven and 14 days without access to a lawyer. In the light of the evidence submitted to it and the lack of a plausible explanation on the part of the Government, the Court found it established that the injuries described in the medical reports had been caused by treatment for which the Turkish Government bore responsibility, in breach of Article 3.

As to the criminal proceedings against the police officers, the Court observed that they had lasted for more than five years without any decision being taken on the merits. For the Court, it was regrettable that the domestic court had failed to ensure a speedy trial for the State agents charged with ill-treatment and that, as a result of that failure, the prosecution had become time-barred. In view of the significant delay in the conducting of the proceedings before the Assize Court, the Court considered that the Turkish authorities had not acted with due promptness or with reasonable diligence, such that the presumed perpetrators of acts of violence had enjoyed virtual impunity, thus rendering the criminal remedy ineffective, in further breach of Article 3.

The Court observed that the applicants Önder Dağdelen and Ergül Çiçekler were interrogated during their period in police custody, which lasted between ten and 14 days. In that time, without the assistance of counsel, they gave statements by which they incriminated themselves and they took part in numerous investigative measures. The results of those measures during their police custody were used in evidence against them in the reasoning of the judgments convicting them. These two applicants were unsuccessful in their attempt to appeal against the investigative measures in question. The Court did not find it necessary to ascertain whether the conviction was decisively based on those investigative measures. It was sufficient to note that the facts were established by the criminal courts partly on the basis of acts involving recourse to ill-treatment and without allowing access to counsel, and that the Court of Cassation had provided no redress for those shortcomings. The Court found unanimously that there had been a violation of Article 6 §§ 1 and 3 in respect of these applicants.

The Court awarded, in respect of non-pecuniary damage, EUR 8,000 each to Sami Özbil and Murat Telli, and EUR 11,000 each to Önder Dağdelen and Ergül Çiçekler, and in respect of costs and expenses, EUR 2,000 to Sami Özbil and Murat Telli, jointly, and EUR 3,000 to Önder Dağdelen and Ergül Çiçekler jointly. The Court considered that there was no need to examine separately the complaints under Article 6 § 1 and Article 13, and declared inadmissible the complaint concerning the length of the criminal proceedings against Önder Dağdelen and Ergül Çiçekler. (The judgment is available only in French.)

No violation of Article 2 (life)

Violation of Article 2 (investigation)

Ömer Aydın v. Turkey (no. 34813/02)

The applicant, Ömer Aydın, is a Turkish national who was born in 1940 and lives in Istanbul. His son Fatih Aydın committed suicide while performing his compulsory military service in the navy.

On 26 August 2001 the applicant’s son was seriously injured when he set fire to himself on the deck of a ship, after dowsing himself in fuel. He jumped into the sea and was rescued, then taken to hospital, but died from his injuries a few days later. A criminal investigation was opened automatically. The applicant filed a criminal complaint. In September 2001 the military prosecutor discontinued the proceedings on the ground that the incident had not involved any misconduct or negligence on the part of the armed forces. An administrative commission of inquiry was also set up to investigate the case immediately after the incident. It concluded that no misconduct or negligence could be attributed to military personnel.

The applicant alleged that his son had committed suicide because of ill-treatment by his superior officers and that the military prosecutor’s office had not conducted an effective investigation. He relied, in particular, on Articles 2 (right to life), 6 (right to a fair hearing) and 13 (right to an effective remedy).

According to the applicant, his son had been depressed because of pressure from his superior officers. He had allegedly lost control of himself after being unfairly beaten by a Petty Officer on the day of the incident and had decided to commit suicide. The Court however noted that these allegations were not based on concrete or verifiable facts and had not been conclusively corroborated. The Court noted that in the administrative and criminal investigations statements had been taken from all military personnel who could shed light on the circumstances surrounding the incident and that, following incriminating statements given by the applicant’s son when questioned at the military hospital, the Petty Officers accused by him and others were interviewed. However, none of the statements confirmed the allegations of ill-treatment. Ultimately the evidence before the Court was insufficient for it to establish that there had been ill-treatment.

As regards the death of the applicant’s son, the Court found that there was nothing to indicate that, before joining the armed forces, he had been suffering from any apparent mental problems that could have suggested he was suicidal. He seemed to have begun to show obvious signs of violent behaviour during his military service. After his return from leave in June 2001 he talked about his psychological problems to his superiors, who ordered that he be sent to hospital. In mid-August 2001 he was transferred to the psychiatric unit of a public hospital where he was diagnosed as having an antisocial state of mind and anxiety. That led to his placement in a military hospital, where the psychiatrist observed that his condition did not require any intervention or treatment. A further examination two weeks later was recommended. The Court considered that, whilst the applicant’s son certainly showed signs of malaise on several occasions, his suicide could not have been predicted from his behaviour. In particular, none of the doctors who examined the applicant’s son had noted a serious risk of such an outcome. For the Court, his superiors could not therefore be criticised for failing to order the necessary verification of his mental state and for not having done enough to prevent his suicide. Lastly, the applicant’s son had not requested psychological assistance before his return from leave. In those circumstances, the Court was not convinced that the military authorities should have known that there was a real and immediate risk of suicide. The Court therefore held unanimously that there had been no violation of Article 2 in respect of Fatih Aydın’s suicide.

As to the investigation carried out by the military authorities, the Court considered that the military administration had, to a certain extent, proved to be ineffectual in the establishment and follow-up of the mental state of the applicant’s son, especially after his conscription into the armed forces, which had played a role in the sequence of events. Whilst there was no reason to call into question the willingness of the investigating authorities to shed light on the circumstances, they had nevertheless failed to establish why the military administration had been so ineffectual. Neither the military prosecutor nor the administrative commission of inquiry had sought to interview the various doctors who had examined the applicant’s son and more particularly the psychiatrist who had met him ten days before his suicide, and the results of the investigations made no mention of any responsibility being engaged in that connection. Moreover, the military prosecutor had not sought to clarify a contradiction in statements about a dispute with Fatih Aydın on the day of the incident. The Court therefore held unanimously that the exact circumstances of the conscript’s death had not been duly assessed and determined and that there had thus been a violation of Article 2 in respect of the procedure. It awarded the applicant EUR 2,500 in respect of non-pecuniary damage. The Court held that it was not necessary to examine the other complaints. (The judgment is available only in French.)

Violation of Article 6 § 1 (fairness)

Oral v. Turkey (no. 2) (no. 18384/04)

The applicant, Hüseyin Turgut Oral, is a Turkish national who was born in 1953 and lives in Istanbul.

Mr Oral complained of the unfairness of tax-audit proceedings against him, in particular on account of an erroneous assessment of the facts by the courts based on an expert’s report that had not been transmitted to him. He relied, in particular, on Article 6 § 1 (right to a fair hearing).

The Court considered that respect for the right to a fair hearing had required the effective possibility for the applicant to submit his comments on the expert’s report in question, as the domestic courts had relied on this evidence in establishing the facts. However, he had not been given that possibility. The Court therefore held unanimously that there had been a violation of Article 6 § 1 and found that the judgment constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. (The judgment is available only in French.)

Repetitive cases

The following cases raise issues which have already been submitted to the Court.

Violation of Article 6 § 1 (fairness)

Violation of Article 1 of Protocol No. 1

Enescu and SC Editura Orizonturi SRL v. Romania (no. 9585/04)

The Court found the above violations in the present case, which concerns the annulment of a final judgment following an appeal by the principal public prosecutor.

Violation of Article 6 § 1 (fairness)

Violation of Article 1 of Protocol No. 1

Ghiga v. Romania (no. 77211/01)

Paicu v. Romania (no. 24714/03)

Violation of Article 6 § 1 (fairness)

Şurtea v. Romania (no. 24464/03)

In these three cases the Court found the above violations on account of the domestic authorities’ failure to enforce final judgments in the applicants’ favour in good time.

Violation of Article 1 of Protocol No. 1

Trifu v. Romania (no. 1242/02)

The Court found the above violation in this case on account of the applicant’s prolonged inability to make use of his flat and to receive rent.

Violation of Article 6 § 1 (fairness)

Gencer v. Turkey (no. 31881/02)

The Court found the above violation in this case concerning the applicant’s complaint about the unfairness of decisions which annulled his right to lease land which had been the main source of income for him and his family.

Length-of-proceedings case

In the following case, the applicant complained in particular about the excessive length of proceedings.

Violation of Article 6 § 1 (length)

Violation of Article 13

Emin Şirin v. Turkey (no. 40750/04)

Violation of Article 6 § 1 (length)

Yalçın Korkmaz v. Turkey (no. 23085/04)

***

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.

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.

² In which the Court has reached the same findings as in similar cases raising the same issues under the Convention.