ECHR: Chamber judgements of 17.07.2008

Press release issued by the Registrar

Chamber judgments concerning 
Armenia, Austria, Belgium, Croatia, Cyprus, Finland, Georgia, Hungary, Italy, Malta, 
Poland, Romania, Russia, Turkey and the United Kingdom

The European Court of Human Rights has today notified in writing the following 38 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 & 3 (b)

Violation of Article 11

Violation of Article 2 of Protocol No. 7

Ashughyan v. Armenia (application no. 33268/03)

The applicant, Gayane Ashughyan, is an Armenian national who was born in 1965 and lives in Yerevan (Armenia).

After the 2003 presidential elections, Ms Ashughyan participated in a series of protest rallies in Yerevan organised by the opposition parties. She was arrested on two of those occasions, 7 and 9 April 2003, and was first sentenced to an administrative fine and then to five days' administrative detention.

The case concerned Ms Ashughyan's allegation that she was arrested simply because she had participated in those demonstrations. She also complained about the unlawfulness of her detention, the unfairness of the proceedings against her and the fact that she had no right to contest the decisions against her. She relied, in particular, on Article 5 (right to liberty and security), Article 6 (right to a fair trial), Article 10 (freedom of expression), Article 11 (freedom of assembly) and Article 2 of Protocol No. 7 (right of appeal in criminal matters) to the European Convention on Human Rights.

The European Court of Human Rights declared inadmissible the applicant's complaints under Article 5 of the Convention and under Article 6 as far as the independence of the tribunal was concerned. It held unanimously that there had been a violation of Article 6 § 1 taken together with Article 6 § 3 (b) because the applicant was not given adequate time and facilities for the preparation of her defence in the proceedings of both 7 and 9 April 2003. The Court further held that there was no need to examine the other complaints under Article 6 or the complaint under Article 10. Under Article 11, the Court concluded unanimously that there had been a violation as regards the applicant's right to freedom of peaceful assembly in respect of the demonstrations of both 7 and 9 April 2003. Lastly, since the applicant had not had at her disposal an appeal procedure satisfying the requirements of Article 2 of Protocol No. 7, the Court held unanimously that there had been a violation of this Article in respect of both convictions.

Violation of Article 6 § 1 (length)

No violation of Article 10

Schmidt v. Austria (application no. 513/05)

The applicant, Harald Schmidt, is an Austrian national who lives in Vienna. He is a practising lawyer.

The case concerned Mr Schmidt's complaint that he was sanctioned with a written reprimand following disciplinary proceedings brought against him for infringing the Vienna Food Inspection Agency's honour and reputation in observations he had filed with regard to charges against one of his clients. He alleged, in particular, that the Agency had "attempted to play tricks (Schummelversuch) on" his client. He relied on Article 10 (freedom of expression).

The Court noted, in particular, that the statement in which the applicant had referred to Schummelversuch had not been supported by any facts. Indeed, that statement had not explained in any detail why the applicant had thought that the Vienna Food inspection Agency had acted improperly when having brought charges against his client. The Court reiterated that, given the key role of lawyers, it was legitimate to expect them to contribute to and maintain the public's confidence in the proper administration of justice. Moreover, the domestic courts had imposed on the applicant the most lenient sanction provided for by the Disciplinary Act. The Court therefore concluded, by four votes to three, that there had been no violation of Article 10.

It further concluded unanimously that there had been a violation of Article 6 § 1 (right to a fair hearing within a reasonable time). Mr Schmidt was awarded 4,000 euros (EUR) in respect of non-pecuniary damage and EUR 3,568.32 for costs and expenses. (The judgment is available only in English.)

Violation of Article 8

Leschiutta and Fraccaro v. Belgium (nos. 58081/00 and 58411/00)

The applicants, Carlo Leschiutta and Luigi Fraccaro, are Italian nationals who were born in 1948 and 1959 and live in Cerea and Tolmezzo (Italy). They are the fathers of Andrea and Elia respectively, born in 1995 and 1987 to A.M., with whom they both had a relationship.

The applicants complained that they had been separated from their children, who had been taken by their mother to Belgium, even though they had been awarded custody by the Italian courts in 1995 and 1998. In December 1998 the Belgian courts declared the relevant decisions enforceable in Belgium. Soon after, a court bailiff accompanied by police officers went to A.M.'s home, where they made an unsuccessful attempt to enforce the decision of the Belgian court. The Belgian social services drew up a report in February 1999 and two meetings between the applicants and their sons were organised in May 1999 and April 2000. A.M. was sentenced to terms of imprisonment by both the Italian and the Belgian courts for abducting her sons. Nevertheless, in the meantime she was awarded custody of the children by the Belgian courts on the ground that they had formally objected to being returned to Italy to live with their fathers. In December 1999 Andrea and Elia were placed in the care of the Belgian social services. Mr Leschiutta and Mr Fraccaro went to Belgium in June 2000 to collect their children and they all then returned to Italy.

According to the information supplied by the two fathers, the children live at present in Italy. Elia lives with his mother and father alternately. Proceedings concerning custody of Andrea are currently pending; he lives with his mother, who has given an undertaking not to take him away to Belgium except for short holidays.

Relying on Article 8 (right to respect for private and family life), the applicants alleged that the Belgian authorities had not taken the necessary measures to reunite them with their children earlier.

The Court noted that only one serious attempt had been made to enforce the relevant decision. It considered that the Belgian authorities had neglected to take all the steps that could reasonably have been required of them to ensure the children's return to their respective fathers. By encouraging the children to persist with their refusal to return to live with their fathers, the authorities' passivity, together with the inexorable passage of time, could have led to a total breakdown in the relations between father and child, which could by no means be considered to be in the child's best interests. It followed that the Belgian authorities had failed to take prompt, appropriate and sufficient action to ensure the effective exercise of the applicants' right to the return of their children. The accordingly held unanimously that there had been a violation of Article 8. It awarded Mr Leschiutta and Mr Fraccaro EUR 20,000 each for non-pecuniary damage and EUR 15,000 for costs and expenses. (The judgment is available only in French).

Violation of Article 8

I. v. Finland (no. 20511/03)

The applicant, I., is a Finnish national who was born in 1960 and lives in Finland.

Between 1989 and 1994 the applicant worked on fixed-term contracts as a nurse in a public hospital. From 1987 onwards she consulted that hospital's polyclinic for infectious diseases as she had been diagnosed as HIV-positive.

The case concerned the applicant's allegation that, following certain remarks made at work at the beginning of 1992, she suspected that colleagues had unlawfully consulted her confidential patient records and that the district health authority had failed to provide adequate safeguards against unauthorised access of medical data. She relied on Article 8 (right to respect for private life), Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy).

The Court held unanimously that there had been a violation of Article 8 on account of the domestic authorities' failure to protect, at the relevant time, the applicant's patient records against unauthorised access. The Court further held unanimously that there was no need to examine the complaints under Articles 6 and 13. The applicant was awarded EUR 5,771.80 in respect of pecuniary damage, EUR 8,000 in respect of non-pecuniary damage and EUR 20,000 for costs and expenses. (The judgment is available only in English.)

No violation of Article 5 § 3

Galuashvili v. Georgia (no. 40008/04)

The applicant, Tamaz Galuashvili, is a Georgian national who was born in 1956 and lives in Tbilisi.

Mr Galuashvili was arrested in June 2004 and subsequently charged with the unlawful transportation and storage of firearms and ammunition. In November 2004 he was convicted as charged and, sentenced to a one year suspended prison sentence, was immediately released.

The case concerned the applicant's complaints that he was arrested without reasonable suspicion, that he was not immediately informed of the reasons for his arrest and that the domestic courts' decisions ordering his pre-trial detention lacked adequate reasoning. He relied on Article 5 §§ 1, 2 and 3 (right to liberty and security).

The Court concluded, by six votes to one, that there had been no violation of Article 5 § 3 and declared the remainder of the application inadmissible. (The judgment is available only in English.)

Violation of Article 6 § 1 (length)

Lajos Kovács v. Hungary (no. 8174/05)

The applicant, Lajos Kovács, is a Hungarian national who was born in 1951 and lives in Veszprém-Kádárta (Hungary).

The case concerned Mr Kovács' complaint about the excessive length of proceedings against him with regard to income tax. He relied on Article 6 § 1 (right to a fair trial within a reasonable time).

The Court concluded unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 1,200 in respect of non-pecuniary damage. (The judgment is available only in English.)

No violation of Article 3

Violation of Article 8

De Pace v. Italy (no. 22728/03)

The applicant, Tommaso de Pace, is an Italian national who was born in 1942. At the time when his application was lodged he was serving a life sentence for murder and criminal conspiracy of the mafia type in Spoleto (Italy).

He complained of the special prison regime to which he was subject, which involved, among other impositions, restrictions on family visits and interception of his correspondence. He further complained of repeated body searches. He relied on Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private and family life).

The Court considered that the limitations and restrictions which resulted from application of the special regime had not reached the minimum level of gravity required and declared the complaint under Article 3 inadmissible. However, it observed that it had already found that the relevant domestic legislation did not constitute a sufficient legal basis for interception of a prisoner's correspondence and unanimously held that there had been a violation of Article 8. On the question of non-pecuniary damage, the Court held that the finding of a violation constituted in itself sufficient just satisfaction. It awarded the applicant EUR 3,000 for costs and expenses. (The judgment is available only in French).

Just satisfaction

Edwards v. Malta (no. 17647/04)

Fleri Soler and Camilleri v. Malta (no. 35349/05)

Ghigo v. Malta (no. 31122/05)

Joseph John Edwards is a British and Maltese national who was born in 1919 and lives in London. Anna Fleri Soler and Herbert Camilleri are Maltese nationals who were born in 1932 and 1934 respectively and live in Malta. Attilio Ghigo is a Maltese national who was born in 1928 and lives in Tarxien (Malta).

In judgments delivered on 24 October 2006 and 26 September 2006, the Court held that there had been a violation of Article 1 of Protocol No. 1 (protection of property) regarding property belonging to the applicants requisitioned by the Government (for more than 30 years in the case of Edwards, for almost 65 years in the case of Fleri Soler and Camilleri and for almost 22 years in the case of Ghigo) which resulted in a landlord-tenant relationship being imposed on the applicants under which they received only a small amount of rent and a minimal profit. The Court declared that the question of the application of Article 41 (just satisfaction) was not yet ready for decision.

In its judgments today, the Court, unanimously awarded EUR 39,750 to Mr Edwards, EUR 287,675 to Mrs Fleri Soler and Mr Camilleri, and EUR 33,720 to Mr Ghigo. In the cases of Edwards and Ghigo, the Court, referring to Article 46 of the Convention, identified a deficiency in the Maltese housing legislation at issue. It considered that, in the execution of its judgments, Malta had to set up remedial procedures to balance the interests of the landlords, including their entitlement to derive profit from their property, and those of the community, including the availability of sufficient accommodation for the less well-off. (The judgments are available only in English.)

Violation of Article 6 § 1 (length)

Violation of Article 13

Borowski v. Poland (no. 21340/04)

The applicant, Winicjusz Borowski, was a Polish national who was born in 1933 and died in December 2005.

In September 1992 he was charged with tax evasion. The criminal proceedings ended with his acquittal in October 2004. Relying on Article 6 § 1 (right to a fair trial within a reasonable time) and Article 13 (right to an effective remedy), the applicant complained of the excessive length of the criminal proceedings against him.

The Court held unanimously that there had been violations of Article 6 § 1 and Article 13 and awarded the applicant's son EUR 10,000 for non-pecuniary damage and EUR 1,850 for costs and expenses. (The judgment is available only in French.)

Violation of Article 6 § 1 (length)

Violation of Article 13

Szklarska v. Poland (no. 21105/06)

The applicant, Ewa Szklarska, is a Polish national who was born in 1966 and lives in Warsaw. At the relevant time she was a police officer.

In April 2001 criminal proceedings were brought against her on suspicion of being involved, with other police officers, in a conspiracy to steal cars. The proceedings against her are still pending. She complained that the proceedings had been excessively lengthy. She relied on Article 6 § 1 (right to a fair trial within a reasonable time) and Article 13 (right to an effective remedy).

The Court held unanimously that there had been violations of Article 6 § 1 and Article 13 and awarded the applicant EUR 5,000 for non-pecuniary damage. (The judgment is available only in French.)

Violation of Article 6 § 1 (fairness)

Kabkov v. Russia (no. 12377/03)

The applicant, Nikolay Ivanovich Kabkov, is a Russian national who was born in 1933 and lives in Sergiyev Posad (Russia).

The case concerned the applicant's employment dispute.

The Court found that the domestic courts' continued failure to determine the applicant's employment dispute had impaired the very essence of his right of access to a court in violation of Article 6 § 1, and that no separate examination of the issue of the length of proceedings was required. Mr Kabkov was awarded EUR 3,000 in respect of non-pecuniary damage. (The judgment is available only in English.)

No violation of Article 3 (treatment)

Violation of Article 3 (investigation)

Mehmet Ümit Erdem v. Turkey (no. 42234/02)

The applicant, Mehmet Ümit Erdem, is a Turkish national who was born in 1976 and lives in Istanbul. He is a lawyer.

The case concerned Mr Erdem's allegation that, during an anti-war protest organised by a number of political parties and non-governmental organisations on 14 October 2001 in Istanbul, the police had sprayed pepper gas in his face, kicked him and beat him with truncheons. He also complained that the Turkish authorities had failed to investigate adequately his allegations. He relied, in particular, on Article 3 (prohibition of inhuman or degrading treatment).

The Court considered that the facts and evidence available were insufficient to conclude "beyond reasonable doubt" that Turkey was responsible for the injuries sustained by the applicant on 14 October 2001. The Court therefore concluded unanimously that there had been no violation of Article 3.

However, the Court found that entrusting the Istanbul Governor with the investigation into the incident, himself responsible for the police officers who had allegedly caused the applicant's injuries, had to call into question the independence and impartiality of his decision not to prosecute. Accordingly, the Court concluded unanimously that there had been a violation of Article 3 on account of the failure of the authorities to conduct an independent investigation into the circumstances surrounding the injuries sustained by the applicant. Mr Erdem was awarded EUR 5,000 in respect of non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in English.)

Violation of Article 6 § 1 (length)

Erten v. Turkey (no. 10477/02)

The applicant, Hüseyin Erten, is a Turkish national who was born in 1946 and lives in Ankara.

In June 1996 the applicant was arrested and charged with criminal bankruptcy. In April 2003 the Turkish courts discontinued the proceedings because the limitation period had expired. The applicant complained that the proceedings against him had been excessively lengthy and relied on Article 6 § 1 (right to a fair trial within a reasonable time).

The Court held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 3,500 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.)

No violation of Article 3 (treatment)

Violation of Article 3 (investigation)

Kızıl v. Turkey (no. 29098/03)

The applicant, Yunus Kızıl, is a Turkish national who was born in 1974 and lives in Batman (Turkey).

On 9 September 2002 he was arrested at a police check-point while riding a moped with no number-plate, without a driving licence and without a registration certificate. He was informed that he would not be permitted to recover his moped until he had attended to these matters. A few hours later the applicant attempted to take it back without seeking police permission and an altercation took place. The applicant was arrested again. Soon after, the applicant underwent a medical examination, which revealed that he had bruising on his shoulder, right arm and right ear, that he had bruises on the back of his left shoulder, his right wrist, his left forearm and his right ankle, and that he would be unfit for work for three days. A medical examination of one of the police officers also revealed a number of bruises. The applicant complained of ill-treatment and abuse of authority on the part of the police. When the provincial governor refused to authorise the opening of a criminal investigation, the public prosecutor discontinued the proceedings. The police regional disciplinary board also found that there was no cause to impose a disciplinary penalty on the arresting officers. Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right to an effective remedy), Mr Kızıl alleged that he had been beaten by the police and complained that there had been no thorough investigation of his case.

In the absence of evidence to corroborate the applicant's allegation that he had been subjected to ill-treatment, the Court considered that the facts had not been sufficiently well established to enable it to conclude that there had been a substantive violation of Article 3.

However, in view of the circumstances of the case, the Court considered that the investigation conducted in the present case could not be regarded as effective and capable of establishing the conditions in which the altercation between the applicant and the police had taken place. It accordingly held unanimously that there had been a violation of Article 3.

It awarded the applicant EUR 3,000 for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.)

Violation of Article 5 § 3

Violation of Article 6 § 1 (length)

Ütebay v. Turkey (no. 40555/04)

The applicant, Ekrem Ütebay, was a Turkish national who was born in 1973 and lived in Istanbul. He died on 14 June 2005.

In March 1994 Mr Ütebay was taken into police custody on suspicion of being a member of the PKK (the Kurdistan Workers' Party). He was ultimately released in April 2004 pending trial. The proceedings were still pending before the domestic courts when the applicant died.

The case concerned the applicant's complaint about the excessive length of his detention pending trial and of the 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 Mr Ütebay's detention pending trial which lasted nearly ten years and one month, and a further violation of Article 6 § 1 on account of the length of the criminal proceedings against him which were still pending at the time of his death and had already lasted 11 years for one level of jurisdiction. The Court awarded Mr Ütebay's parents and brother EUR 14,000, jointly, in respect of non-pecuniary damage. (The judgment is available only in English.)

Violation of Article 6 § 1 (fairness)

Violation of Article 10

Yılmaz and Kılıç v. Turkey (no. 68514/01)

The applicants, Abdullah Yılmaz and Erdem Kılıç, are Turkish nationals who were born in 1978 and 1977 respectively. At the relevant time they were members of Hadep (The People's Democracy Party), in Çiğli (Turkey).

They were both arrested following demonstrations in Izmir (Turkey) in November 1998 called to protest about the arrest of Abdullah Öcalan, the former leader of the illegal armed organisation the PKK (Workers' Party of Kurdistan). The applicants complained that they had been sentenced by the Izmir National Security Court to prison terms of three years and nine months and four years and four months respectively for lending aid and assistance to an illegal organisation. They also complained that the proceedings in the National Security Court had been unfair in that the bench had included a military judge. They relied on Article 6 § 1 (right to a fair trial) and Article 10 (freedom of expression).

As in a number of similar cases, the Court considered that the applicants' fears concerning the independence and impartiality of the National Security Court could be regarded as objectively justified. It therefore held unanimously that there had been a violation of Article 6 § 1.

The Court also reached the same conclusion as in other cases raising similar issues under Article 10. After examining the reasons given in the National Security Court's judgment, it took the view that such reasons were not sufficient to justify an interference with the applicants' freedom of expression. Even though the interference could be justified by the concern to prevent disorder, particularly in the particularly tense political climate in Turkey at the material time, the criminal penalties imposed on the applicants had been manifestly disproportionate, in their nature and severity, in relation to the legitimate aim pursued, and had not been "necessary in a democratic society". There had therefore been a violation of Article 10. The Court awarded each of the applicants EUR 2,500 for non-pecuniary damage. (The judgment is available only in French.)

No violation of Article 2 (life)

Violation of Article 2 (investigation)

Yürekli v. Turkey (no. 48913/99)

The applicant, Ferit Yürekli, is a Turkish national who was born in 1976 and lives in Bursa (Turkey).

In March 1977, while he was performing his compulsory military service, the applicant suffered a fall of 13 metres and sustained serious injuries. The exact circumstances of the fall are the subject of disagreement between the applicant, who asserted that he had accidentally fallen while on a work fatigue, and the Turkish Government, who alleged that it had been an attempted suicide. Relying on Article 2 (right to life), among other provisions, the applicant complained that his right to life had not been protected by the military authorities and the investigations conducted after the incident had not been adequate.

The Court considered that it did not have any evidence which might enable it to conclude with certainty that the applicant had been the victim of an accidental fall while on a work fatigue. Similarly, it observed that there was no evidence that the military authorities should reasonably have been expected to foresee and prevent the applicant's fall. There had therefore been no violation of Article 2 on that account.

The Court noted a number of shortcomings in the criminal investigation of the case. It attached importance in particular to the fact that the applicant had not been interviewed until more than eight months after the events, and only then as the defendant in criminal proceedings brought against him for deliberately making himself unfit for military service. It also noted that there had been no proceedings in which the applicant could have appeared as a victim with a view to establishing who if anyone bore responsibility for his fall. Having regard to the circumstances of the case, the Court considered that the investigation conducted in the case could not be regarded as effective and capable of establishing what had happened and who might be responsible for the injuries. It accordingly held unanimously that there had been a violation of Article 2. It awarded the applicant EUR 3,000 for non-pecuniary damage. (The judgment is available only in French.)