Judgments of 11 October 2016

Transcription

1 issued by the Registrar of the Court ECHR 322 (2016) Judgments of 11 October 2016 The European Court of Human Rights has today notified in writing 28 judgments 1 : nine Chamber judgments are summarised below; for three others, in the cases of Zubac v. Croatia (application no /12), Bagdonavicius and Others v. Russia (no /06), and Kasparov v. Russia (no /07), separate press releases have been issued; 16 Committee judgments, which concern issues which have already been submitted to the Court, can be consulted on Hudoc and do not appear in this press release. The judgments in French below are indicated with an asterisk (*). Barcza and Others v. Hungary (application no /10) The applicants, Jenőné Barcza, Jánosné Básits, and László Pávai, are Hungarian nationals who were born in 1962, 1957, and 1930 respectively. They live in Solymár, Dunabogdány, and Leányfalu (Hungary). The case concerned land they had owned which had been designated as a protection zone for a water reserve. In a decision of December 2002 the applicants were informed about a decision of the General Directorate of Water Management that the land they owned in the municipality of Leányfalu had been designated as a protected water reserve. The reserve was owned by the Hungarian State and the decision foresaw that the same ownership over the water reserve and over the land where it was located should be established. However, despite the applicants making two offers for the sale of their plot of land to the authorities (in November 2005 and October 2009) and a court judgment of October 2009 confirming that the administrative authorities were obliged to conclude the expropriation procedure, the authorities did not expropriate the applicants land until They received approximately 126,000 euros in compensation in In the meantime, the land had been used for water management purposes. Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, the applicants complained about the authorities failure to decide on the expropriation of their land for almost nine years, during which time they could neither make use of their property nor obtain compensation. Violation of Article 1 of Protocol No. 1 Just satisfaction: 39,000 euros (EUR) in respect of pecuniary and non-pecuniary damage combined, and EUR 5,937 in respect of costs and expenses to the applicants jointly 1 Under Articles 43 and 44 of the Convention, Chamber judgments are not final. During the three-month period following a Chamber judgment s delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Under Article 28 of the Convention, judgments delivered by a Committee are final. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here:

2 Gaina v. Lithuania (no /08) The applicant, Liudmila Gaina, is a Lithuanian national who was born in 1961 and lives in Kaunas (Lithuania). The case concerned a delay in the cancellation of a debt she had owed to the State, resulting in her incurring significant banking and legal costs. Ms Gaina obtained two loans from the State in 1994 and 2000, amounting to 34,794 euros. She subsequently bought from a third party the right to restoration of title of a plot of land in Kaunas; in October 2001 the Kaunas County Administration ( the KCA ) restored these property rights to her by cancelling her outstanding debt to the State under the two loan agreements. However, in December 2001 following an internal audit the KCA suspended the restoration of Ms Gaina s property rights because it was suspected that an error had been committed in previous civil proceedings which had determined the size of the land owned by the third party. For the next three years and two months, there were different sets of court proceedings including a prosecutor s application to reopen the aforementioned civil proceedings, an application to suspend the KCA s decisions, an examination of the merits in the reopened proceedings and revocation of the order suspending the KCA s decisions. After the size of the land owned by the third party had been confirmed, in December 2004, the Ministry of Finance issued a certificate confirming the cancellation of Ms Gaina s outstanding debt to the State. In the meantime, the bank which administered her two loans, did not require Ms Gaina to repay her debt, but continued calculating interest, which she paid but only until September She was thus contacted by the bank in January 2005 to inform her that she owed 3, euros in unpaid interest and fines for late payment. The bank then lodged a civil claim against Ms Gaina for payment of this sum. In February 2006 the Kaunas District Court granted the bank s claim in part, finding it justified that Ms Gaina should pay the interest but not the fines. Her appeal against this judgment as well as her counterclaim against the bank were both dismissed. Ms Gaina also brought proceedings for damages, claiming that the delay in the cancellation of her debt from October 2001 to December 2004 had caused her financial loss (consisting of interest, late payment fines and legal costs). Her claim against the KCA was dismissed in June 2007 by the Regional Court, and then by the Supreme Administrative Court in March 2008, on the ground that the decisions to suspend restoration of her property rights had been in accordance with domestic law. Relying on Article 1 of Protocol No. 1 (protection of property), Ms Gaina complained about the delay in the restoration of her property rights as well as in cancelling her debt to the State, and that this had caused her to incur substantial costs. No violation of Article 1 of Protocol No. 1 Leonid Petrov v. Russia (no /08) The applicant, Leonid Petrov, is a Russian national who was born in He is currently serving a 14-year sentence in Novocheboksarsk (in the Chuvash Republic, Russia) following his conviction in 2007 for murdering his cousin. Mr Petrov was arrested on 6 October 2006 in the context of an investigation into the theft of money belonging to his cousin as well as her murder and was taken for questioning at the local police station. He alleges that two police officers punched and kicked him and, shackling a 40kg weight to his hands, threatened to throw him out of a first-floor window if he did not confess; on refusing, they threw him out of the window. He was taken to hospital where he was diagnosed with fractures to both feet as well as concussion and various injuries to his eyes, face, left ear, right tooth, knees and left hip. While in hospital he was shackled to his bed and guarded by a police officer. He was 2

3 questioned twice, first about the theft and then about the murder. Subsequently charged with both crimes and remanded in custody, he was transferred on 16 October from hospital to a pre-trial detention facility and remained there until his conviction. Mr Petrov s mother lodged a complaint with the prosecuting authorities while her son was still in hospital and the investigating authorities carried out a pre-investigation inquiry. They decided that there was nothing to show that the police had committed any crime and refused to open a criminal investigation. They took 24 such decisions, the higher domestic authorities repeatedly setting them aside as unsubstantiated, unlawful or based on an incomplete inquiry. In the most recent refusal in December 2008 the investigator found that Mr Petrov had jumped out of the police station window in order to escape; that his subsequent hospitalisation made it impossible for the authorities to draw up a record of his arrest until 10 October 2006; that he had been handcuffed in hospital to prevent him from escaping again; and that his allegation of police brutality had not been made out, a forensic medical expert of 14 December 2006 having concluded that it was impossible to determine from Mr Petrov s records whether his injuries had been the result of him falling from the first floor or from being beaten up. The inquiry was ultimately concluded in November 2009 by the domestic courts which found that the investigating authorities had carried out all necessary measures and had taken a reasoned decision on the basis of a full and comprehensive inquiry in accordance with the law. Relying in particular on Article 5 1 (c) (right to liberty and security), Mr Petrov complained about being held at the police station and then in hospital, with no formal record of his arrest being drawn up for four days. Further relying on Article 3 (prohibition of inhuman or degrading treatment), he also alleged that he had been subjected to ill-treatment by the police and that no effective investigation had been carried out into his complaint. Violation of Article 5 1 Violation of Article 3 (inhuman and degrading treatment) Violation of Article 3 (investigation) Just satisfaction: EUR 23,000 (non-pecuniary damage) Ruslan Makarov v. Russia (no /13) The applicant, Ruslan Makarov, is a Russian national who was born in He complained about his involuntary placement in a psychiatric facility. Mr Makarov, who has a schizotypal personality disorder, was apprehended by the police on Friday 14 September 2012 and taken to a psychiatric hospital following a request by the local medical services. He had apparently been refusing to have outpatient treatment, despite complaining about his condition having worsened, and had voiced ideas of revenge and murder against certain regional officials. He was examined the next day by a panel of psychiatrists, who found that he was a danger to himself or others. On Monday 17 September 2012 the hospital thus applied for judicial authorisation of his involuntary hospitalisation. Two days later the Town Court, taking into account his personal and medical history as well as his prior criminal behaviour, granted the application and ordered his psychiatric treatment. Counsel for Mr Makarov appealed against this order, arguing that the Town Court had failed to demonstrate a need for hospitalisation and that the application for involuntary hospitalisation had been lodged outside the statutory time-limit of 48 hours. The Supreme Court dismissed this appeal in November 2012, finding the lower court s order to be wellreasoned and lawful; furthermore it found that the hospital administration not the courts had been at fault for any delay in requesting a court order for his hospitalisation. Relying in particular on Article 5 1 (e) (right to liberty and security), Mr Makarov alleged that his mental health status had not justified involuntary hospitalisation and that it had therefore been 3

4 unlawful, complaining also that the application for judicial authorisation of his hospitalisation had been submitted outside of the procedural time-limit of 48 hours. Violation of Article 5 1 Just satisfaction: EUR 500 (non-pecuniary damage) and EUR 1,000 (costs and expenses) Turyev v. Russia (no /04) The applicant, Sergey Turyev, is a Russian national who was born in 1967 and (until his conviction) lived in Ivdel, a town in the Sverdlovsk Region (Russia). Mr Turyev complained that a media interview given by the local prosecutor before his trial had violated his right to a fair hearing. The applicant was arrested on charges of murder and arson in April After his arrest, a local newspaper published an interview with the deputy town prosecutor about the spike in murder rates. The prosecutor mentioned Mr Turyev by his first initial and full last name, and labelled him the murderer of one victim and complicit in the murder of another victim. Mr Turyev requested that the prosecutor be disqualified from his trial, on the grounds that his interview had given the appearance of prejudice. However, the court rejected this application. Mr Turyev was found guilty in January 2003, and he was sentenced to 20 years imprisonment. Mr Turyev filed a post-conviction complaint with the Sverdlovsk Regional Prosecutor s Office. The Regional Prosecutor s Office found that the interview by the deputy prosecutor had breached the agency s ethics policy; however, it did not provide Mr Turyev with any redress. Mr Turyev claimed in particular that the prosecutor s press interview had been in breach of his rights under Article 6 2 (presumption of innocence), as it had effectively determined that he would be convicted. Violation of Article 6 2 Just satisfaction: The Court dismissed Mr Turyev s claim for just satisfaction. Cano Moya v. Spain (no. 3142/11) The applicant, Vicente Manuel Cano Moya, is a Spanish national who was born in 1972 in Villahermosa (Ciudad Real) and is currently serving a prison sentence in Spain. At the relevant time, he was in prison on remand in Foncalent (Alicante). The case concerned his punishment for disciplinary offences whilst in prison, and, mainly, the refusal of the domestic authorities to provide him with a full copy of his case file. Mr Cano Moya was found guilty of a disciplinary offence by the disciplinary board of the Alicante Prison in October It was found that he had threatened prison officers, disobeyed their orders and damaged prison property. The applicant appealed against the sanction before the Comunidad Valenciana post-sentencing judge, who partially upheld the disciplinary board s decision in November Mr Cano Moya appealed this decision to the same judge (through a reforma appeal), and he also made an amparo appeal to the Constitutional Court. These appeals were dismissed in February and September 2010, respectively. Mr Cano Moya wished to make a complaint to the European Court of Human Rights, and requested a full copy of his case file. However, the authorities repeatedly refused to provide this. The main ground for refusal was that the European Court of Human Rights had the power to request the case file itself. 4

5 Relying in particular on Article 34 (right of individual petition), Mr Cano Moya complained that the domestic authorities had violated his right of individual petition by refusing to provide him with a full copy of his case file, for the purpose of lodging an application with the European Court. Violation of Article 34 Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr Cano Moya. Iglesias Casarrubios and Cantalapiedra Iglesias v. Spain (no /12)* The applicants, Ms María Paz Iglesias Casarrubios and two of her children, Alba Sabine Cantalapiedra Iglesias and Sonia Cantalapiedra Iglesias, are Spanish nationals who were born in 1964, 1993, and 1996 respectively and live in Madrid. The case concerned the refusal of a judge to interview the children, who were minors at the relevant time, during the proceedings for their parents divorce. In October 1999 Ms Iglesias Casarrubios s husband made an application to a court for judicial separation. In a judgment delivered in June 2000 the court granted the judicial separation, awarded custody of the two minor daughters to the mother with shared parental responsibility and granted the father a right of contact. In 2006 the husband instituted divorce proceedings, which were opposed by Ms Iglesias Casarrubios, who requested that the two daughters, aged 13 and 11, be interviewed during the proceedings. The judge did not interview them himself but directed that the children were to be interviewed by the psychosocial unit attached to the court. In the end, the interview did not take place. On 17 December 2007 the court granted the divorce and awarded custody to Ms Iglesias Casarrubios with shared parental responsibility. Ms Iglesias Casarrubios appealed to the Audiencia Provincial. In an order of 12 June 2008, having regard to the disagreement between the parents, the judge requested a report on whether it would be appropriate to award custody of the children to their father, a third party or a public institution. Ms Iglesias Casarrubios applied to have the order set aside (reposición) and attached two letters from the children to the judge, in which they complained that he had not personally interviewed them during the proceedings and that he only knew of their relationship with their father through other people. Ms Iglesias Casarrubios stated that her two daughters wished to be interviewed by the judge and a representative of State Counsel s office. The judge did not reply. On 30 September 2010 the Audiencia Provincial dismissed Ms Iglesias Casarrubios s appeal. In November 2010 the Audiencia Provincial declared an extraordinary appeal lodged by Ms Iglesias Casarrubios in which she had expressly relied on the right of the children to be interviewed by the judge inadmissible for a breach of the rules of procedure. Her subsequent amparo appeal to the Constitutional Court was declared inadmissible as lacking special constitutional significance. The first applicant and her two daughters, who were minors at the time of the events, complained of a violation of Article 6 (right to a fair hearing) on account of the refusal of the domestic courts to hear the children in person during the proceedings for their parents divorce, and the failure of the domestic courts to respond to their request. Violation of Article 6 1 in respect of Ms Iglesias Casarrubios Just satisfaction: EUR 6,400 (non-pecuniary damage) and EUR 2,000 (costs and expenses) to Ms Iglesias Casarrubios 5

6 Hasan Yaşar and Others v. Turkey (no /11)* The applicants, Hasan Yaşar, Ayişe Yaşar, Halime Yaşar, Harun Yaşar and Devran Yaşar, are Turkish nationals who were born in 1944, 1952, 1980, 2002, and 2004 respectively and live in Hakkari (Turkey). The case concerned the death of their relative İkbal Yaşar during an unauthorised demonstration. On 23 March 2008 the security forces were deployed near sensitive areas in Yüksekova town centre (Hakkari) because an unauthorised demonstration was being held to celebrate the Nevruz festival. According to the authorities, the demonstrators chanted slogans in support of an illegal organisation, attacked the security forces by throwing stones and Molotov cocktails and put up barricades in the streets, as a result of which the security forces had to intervene with water cannons and tear gas. On the same day, İkbal Yaşar, who was one of the demonstrators, was hit by a bullet and died on the way to hospital. The Yüksekova public prosecutor immediately opened a criminal investigation, which is still ongoing. In January 2010 the public prosecutor also issued a permanent search warrant on the grounds that it had proved impossible to identify those responsible for the death, despite the investigations that had been carried out. Relying in particular on Article 2 (right to life), the deceased s relatives alleged that İkbal Yaşar had been killed by the security forces and that the authorities had not carried out an effective investigation into the death. No violation of Article 2 (right to life) Violation of Article 2 (investigation) Just satisfaction: EUR 20,000 (non-pecuniary damage) jointly to Hasan Yaşar, Ayişe Yaşar, Halime Yaşar and Harun Yaşar. Sayan v. Turkey (no /12)* The applicants, Davut Sayan, Eylem Sayan, Devrim Sayan, and Bahar Sayan, are Turkish nationals who were born in 1970, 1996, 1998, and 1999 respectively and live in İzmir (Turkey). They were the partner and the three children of Leyla Karataş. The case concerned the death of Leyla Karataş in a public hospital where she had been admitted for treatment while nine months pregnant. Ms Karataş went to Yeşilyurt Hospital on 26 September 2001 suffering from a sore throat and breathing difficulties, and then returned home. The following day she again felt unwell and went back to the hospital, where she died at about 8.55 a.m. The doctors performed a post-mortem Caesarean section in an attempt to save the life of the child, who was declared stillborn. Mr Sayan filed a criminal complaint with the public prosecutor s office on account of the conditions in which his partner had been treated. He alleged that he had been asked to pay admission fees but had been unable to do so, with the result that his partner had had to wait several hours without receiving treatment; that the doctors had made an incorrect diagnosis; and that they had given her inappropriate medication and an excessively powerful dose of narcotics. During the proceedings, 10 doctors from Yeşilyurt Hospital were charged with reckless and negligent homicide and were acquitted in March 2007 by the Criminal Court, which based its decision on a report by the Istanbul Forensic Medicine Institute concluding that the death had been caused by a pre-existing lung condition and that the doctors had not been at fault. However, that judgment was quashed by the Court of Cassation in June 2008, and in July 2009 the Criminal Court discontinued the criminal proceedings on the grounds that they were time-barred. Mr Sayan also brought a compensation 6

7 claim in the administrative courts and applied to the Medical Association to institute disciplinary proceedings, but without success. Relying in particular on Article 2 (right to life), Mr Sayan and his children complained about the death of Ms Karataş and the child she was bearing. No violation of Article 2 (right to life) Violation of Article 2 (investigation) Just satisfaction: EUR 20,000 (non-pecuniary damage) and EUR 3,150 (costs and expenses) to the applicants jointly This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on To receive the Court s press releases, please subscribe here: or follow us on Press contacts echrpress@echr.coe.int tel: Tracey Turner-Tretz (tel: ) Denis Lambert (tel: ) Inci Ertekin (tel: ) George Stafford (tel: ) 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. 7