issued by the Registrar of the Court ECHR 277 (2016) 06.09.2016 Judgments of 6 September 2016 The European Court of Human Rights has today notified in writing seven judgments 1. six Chamber judgments are summarised below; for one other, in the case of W.D. v. Belgium (application no. 73548/13), a separate press release has been issued. The judgments in French below are indicated with an asterisk (*). Cindrić and Bešlić v. Croatia (application no. 72152/13) The applicants, Alojz Cindrić and Katarina Bešlić, are Croatian nationals who were born in 1973 and 1975 respectively. The case concerned the killing of their parents during the Homeland War in Croatia. The applicants parents were killed in 1992 on the territory of Croatia which at that time was outside the control of the Croatian authorities and was called by the occupying forces the Serbian Autonomous Region of Krajina. According to the testimonies of various witnesses, the applicants parents were apparently abducted from their home and were shot dead in a nearby village by two Serbian paramilitaries, one of whom is now living in Serbia and the other in the United States of America. In January 1992 the authorities of the Serbian Autonomous Region of Krajina carried out an investigation into the murder of the applicants parents. There is no official information as regards the final outcome of this investigation. In September 2000 the Croatian authorities, having in the meantime regained control of the town in which the applicants parents used to live, also carried out an investigation. The applicants were thus interviewed by the Croatian police and in January 2001 a County Court judge ordered an investigation of the two suspects who had already fled Croatia accused of killing their parents. In that context two sets of extradition proceedings have been brought against the suspects. In particular, the Croatian authorities have been corresponding with the US authorities with a view to having one of the suspects extradited. This suspect s extradition is however pending criminal investigation against him by the US authorities for fraud and misuse of official documents. The other suspect is currently residing in Serbia and has become a Serbian national; as such, he cannot be extradited. He did, however, give evidence in February 2009 to the Serbian authorities at the request of the Croatian authorities, claiming that the criminal proceedings against him and the other suspect had been instituted by a Municipal Court of the Serbian Autonomous Region of Krajina in 1992 and that both of them had been acquitted. The applicants civil claim for damages for the killing of their parents was initially granted, but this decision was then reversed in December 2009. They were also ordered to pay the State s legal costs. 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: www.coe.int/t/dghl/monitoring/execution
This judgment was upheld by the Supreme Court of Croatia in June 2012, which found that the killing of the applicants parents had not occurred on territory under the sovereignty of Croatia. In February 2013 the applicants filed a constitutional complaint, arguing that in a number of its previous decisions the Supreme Court had recognised the right to compensation for damage caused by death during the Homeland War in Croatia. Their constitutional complaint was dismissed in May 2013. Relying on Article 2 (right to life) of the European Convention on Human Rights, the applicants complained in particular that the Croatian authorities had not taken appropriate and adequate steps to investigate the death of their parents, which they said had been racially motivated. The applicants also complained under Article 1 of Protocol No.1 (protection of property) and Article 6 1 (access to court) that they had been ordered to pay the costs of the State s representation in the compensation proceedings, alleging that this had been an excessive financial burden to them and had hindered their access to court. No violation of Article 2 Violation of Article 1 of Protocol No. 1 Violation of Article 6 1 Just satisfaction: 3,400 euros (EUR) (pecuniary damage), EUR 5,000 (non-pecuniary damage) and EUR 3,000 (costs and expenses) to the applicants jointly Alimov v. Turkey (no. 14344/13) The case concerned a complaint by an asylum seeker about his detention pending removal for 104 days. The applicant, Bakhtiyor Alimov, is a national of Uzbekistan who was born in 1970 and lives in Gaziantep (Turkey). In 2010 Mr Alimov and his family left Uzbekistan and travelled to Turkey allegedly to escape the oppression they faced due to their religious beliefs. Although his wife was granted a residence permit in the city of Gaziantep, Mr Alimov was not able to obtain one because he could not pay the permit fee and therefore resided illegally. In April 2011 while travelling from Turkey to Ukraine to seek medical treatment for his wife, Mr Alimov was fined by the Turkish border police for illegal residence and was banned from entering the country for five years. In May 2012 Mr Alimov and his family attempted to re-enter Turkey through Sabiha Gökçen Airport in Istanbul, but he was placed in the detention facility of the airport pending his repatriation to Ukraine. The Turkish Ministry of Interior then rejected Mr Alimov s new asylum request and his objection to repatriation. After lodging an objection to the Ministry s decision in June 2012, Mr Alimov was transferred from Sabiha Gökçen Airport to the Kumkapi Foreigners Removal Centre in Istanbul in July 2012. He remained in detention until August 2012 after being granted a temporary residence permit pending his asylum request. Mr Alimov made a number of complaints under in particular Article 5 1, 2, 4, and 5 (right to liberty and security / right to be informed of the reasons for arrest / right to have lawfulness of detention decided speedily by a court / right to compensation) of the European Convention. He notably alleged: that the procedure in Turkey for detention pending deportation had not been clear and therefore unlawful; that he had never been informed of the reasons for his detention; and that he had had no opportunity to challenge the lawfulness of his detention or receive compensation under the domestic law. 2
Further relying on Article 3 (prohibition of inhuman or degrading treatment), Mr Alimov also complained that he had been detained in degrading conditions, notably in overcrowded detention facilities at both the airport and removal centre, with no access to outdoor exercise at any time during the entire period of his detention. Mr Alimov also relied on Article 13 (right to an effective remedy) taken alone and in conjunction with Article 3 (prohibition of inhuman or degrading treatment), claiming that there had been no effective domestic remedies available to him to complain of the poor conditions while in detention. Violation of Article 5 1, 2, 4, and 5 Violation of Article 3 (degrading treatment) on account of the material conditions of the Mr Alimov s detention at the airport and the removal centre Violation of Article 13 in conjunction with Article 3 on account of the absence of effective remedies to complain about the material conditions of detention at theairport and the removal centre Just satisfaction: EUR 10,000 (non-pecuniary damage) and EUR 4,330 (costs and expenses) Altın and Kılıç v. Turkey (no. 15225/08)* The applicants, Esma Altın and İsmail Kılıç, are Turkish nationals who were born in 1966 and 1974 and live in Diyarbakir and Aksaray (Turkey) respectively. The case concerned the deaths of Esma Altın s and İsmail Kılıç s brothers, who were killed during a police operation against the PKK (the Kurdistan Workers Party, an illegal armed organisation), to which they were suspected of belonging. On 3 December 2003 the security forces raided an apartment in Diyarbakır, after having received an anonymous telephone tip-off concerning the presence of terrorists there. A team of 42 police officers surrounded the apartment, surmising that the occupants were preparing a bomb attack. An exchange of fire with the security forces resulted in the deaths of Ms Altın s and Mr Kılıç s brothers (Hüseyin Altın and İbrahim Kılıç), who had been in the apartment. On 18 December 2003 Ms Altın lodged a complaint with the Public Prosecutor against the police officers involved in the operation, stating that her brother had not been a member of an illegal organisation and that when she had visited the premises a few days after the incident a woman had told her that her brother had been killed outside the building, after having been transported there. According to the expert report, traces of gunpowder had been found on Hüseyin Altın s right hand and on both İbrahim Kılıç s hands. On 21 June 2007, the Diyarbakir Prosecutor, having regard to the official records, the statements given by the police officers and the eye-witnesses, and the expert reports, dismissed the case on the grounds that the first shot had been fired from inside the building and that the police officers had used their weapons in self-defence after the suspects refusal to be bound over. On 13 July 2007 Ms Altın and Mr Kılıç challenged that decision on the grounds that their brothers had been killed under suspicious circumstances, given that both of them had been shot in the head. On 1 August 2007 the President of the Siverek Assize Court upheld the dismissal decision. Relying in particular on Article 2 (right to life), Ms Altın and Mr Kılıç complained of a violation of their brothers right to life, submitting that the operation had not been prepared in such a way as to limit the use of lethal force; they also complained about the lack of an effective and impartial investigation. No violation of Article 2 (right to life) Violation of Article 2 (investigation) 3
Just satisfaction: EUR 10,000 (non-pecuniary damage) to each applicant and EUR 4,000 (costs and expenses) to the applicants jointly. Döndü Günel v. Turkey (no. 34673/07)* The applicant, Döndü Günel, is a Turkish national who was born in 1964 and lives in Istanbul (Turkey). The case concerned the death of Ms Günel s son, who had been suspected of belonging to an illegal armed organisation (MKP the Maoist Communist Party of Turkey) and had been killed by the Gendarmerie during an anti-terrorist operation. On 9 November 2004 Aşkın Günel was killed during an anti-terrorist operation conducted by the security forces in the Tunceli region, near the village of Aktuluk. On the day of the incident a report was drawn up mentioning injuries to his head and an old injury to his tibia. According to Ms Günel, the unclothed body of her son had been handed over to her in public. On 10 January 2005 the Tunceli prosecutor dismissed the case on the grounds that the alleged terrorists had opened fire first and injured two brigadiers, one of whom had died as a result of his wounds; the prosecutor concluded that the soldiers had acted in self-defence. That decision was not communicated to Ms Günel. On 24 August 2005 Ms Günel lodged a complaint against the Gendarmerie officers who had taken part in the operation on the ground that her son, who had been surrounded by the security forces and had already been shot in the tibia, could have been taken alive. That complaint was also dismissed in December 2005. It was subsequently upheld by the President of the Erzincan Assize Court in February 2006. Relying in particular on Article 2 (right to life), Ms Günel submitted that the military operation which had resulted in the death of her son had not been prepared by the authorities in such a way as to minimise the use of lethal force. She further complained of the lack of an in-depth, impartial and effective investigation. Violation of Article 2 Just satisfaction: EUR 20,000 (non-pecuniary damage) Erkenov v. Turkey (no. 18152/11) The applicant, Ramazan Erkenov, is a Russian national of Chechen origin who was born in 1972. The case concerned his complaint about his detention at the Gaziantep Foreigners Removal Centre in Turkey for 18 months. In 2000 Mr Erkenov fled to Turkey while trying to escape from the Russian authorities, who subsequently initiated criminal proceedings against him for his alleged involvement in a bomb attack on a mosque in Chechnya. The Turkish courts later turned down a request by the Russian authorities to extradite Mr Erkenov. In January 2008 Mr Erkenov was arrested by the Turkish police in Istanbul during an operation against al-qaeda and placed in pre-trial detention. He was released in January 2009. He was then placed in detention at the Gaziantep Foreigners Removal Centre until his release in July 2010 under the condition that he would leave Turkey within 15 days. In the meantime Mr Erkenov s requests for asylum and a residence permit were all rejected. Relying in particular on Article 5 1, 2, 4 and 5 (right to liberty and security / right to be informed of the reasons for arrest / right to have lawfulness of detention decided speedily by a court/ right to 4
compensation) Mr Erkenov complained that he had been unlawfully detained without being given the opportunity to challenge the lawfulness of his detention, that he had not been duly informed of the reasons for his detention and that he had had no right to compensation under domestic law. Violation of Article 5 1, 2, 4, and 5 Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 5,200 (costs and expenses) Yasemin Doğan v. Turkey (no. 40860/04)* The applicant, Yasemin Doğan, is a Turkish national who was born in 1973 and lives in Eskişehir (Turkey). On 12 November 2003 Ahmet Doğan s colleagues heard a gunshot and found him seated in his office with a serious injury. He was taken to hospital, where he died of his injuries on 14 November 2003. An investigation was immediately instigated. It emerged from the resultant evidence that Ahmet Doğan had had problems with his superior officer (İ.A.), who had been the subject of an administrative inquiry into irregularities concerning furlough for conscripts, which he had allegedly granted in return for certain favours. According to his wife, Ahmet Doğan had feared being blamed by the commission of inquiry for the acts committed by Lieutenant İ.A. Before his suicide, Ahmet Doğan had also allegedly handed a parcel to a conscript, informing him that it contained papers intended to expose İ.A.; however, the papers were not to be found in the parcel in question. On 9 March 2004 the military prosecutor dismissed the case on the grounds that there was no cogent evidence that Lieutenant İ.A s attitude had prompted Ahmet Doğan to commit suicide. Ms Doğan appealed against that decision, alleging that Lieutenant İ.A held primary responsibility for her husband s suicide, but her appeal was dismissed by the military court on 8 April 2004. Meanwhile, an administrative enquiry established that Lieutenant İ.A had exerted pressure on Ahmet Doğan, threatening him and insulting him in full view of other staff. In July 2004 Ms Doğan lodged a claim for damages with the Supreme Military Administrative Court, submitting that there had been a causal link between her husband s death and the conduct of İ.A, but the claim was dismissed. In the meantime, two sets of criminal proceedings had been brought against İ.A, charged with having forced his subordinates to perform private work and abused his authority as an officer in dealings with them. He was convicted under both sets of proceedings, in May and July 2006, but was given a suspended sentence. Relying in particular on Article 2 (right to life), Ms Doğan complained about her husband s suicide on the grounds that it had been the result of his working conditions. She also criticised the lack of an effective criminal investigation. No violation of Article 2 (right to life) Violation of Article 2 (investigation) Just satisfaction: EUR 20,000 (non-pecuniary damage) and EUR 2,000 (costs and expenses) 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 www.echr.coe.int. To receive the Court s press releases, please subscribe here: www.echr.coe.int/rss/en or follow us on Twitter @ECHR_Press. Press contacts echrpress@echr.coe.int tel: +33 3 90 21 42 08 5
Tracey Turner-Tretz (tel: + 33 3 88 41 35 30) Denis Lambert (tel: + 33 3 90 21 41 09) Inci Ertekin (tel: + 33 3 90 21 55 30) George Stafford (tel: + 33 3 90 21 41 71) 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. 6