Donovan v. United Kingdom - 63466/00 [2007] ECHR 235 (29 March 2007)

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The European Court of Human Rights has today notified in writing the following 11 Chamber judgments, of which only the friendly-settlement judgments are final.^¹

Repetitive cases^² and one length-of-proceedings case, with the Court’s main finding indicated, can also be found at the end of the press release.

Narinen v. Finland (No. 2) (application no. 13102/03) Violation of Article 6 § 1 (length)

The applicant, Jukka-Pekka Narinen, is a Finnish national who was born in 1957 and lives in Klaukkala (Finland). He is a former partner in a limited partnership company, whose affairs were wound up in 1993.

On 4 February 1994 the company’s estate reported Mr Narinen as having committed an offence. Five months later he was interviewed by the police for the first time. In September 1997 the Helsinki District Court held the first of 16 hearings which resulted in Mr Narinen’s conviction on 4 March 1999 of fraud, debtor’s dishonesty and book-keeping offences, for which he was sentenced to one year and eight months’ imprisonment. Mr Narinen appealed, requesting that there be an oral hearing and that the proceedings be sped up. He further claimed that the charges should be dismissed on account of the length of the proceedings. On 25 March 2002 the Helsinki Court of Appeal upheld the District Court’s judgment but reduced his prison sentence to 18 months. The proceedings ended on 2 October 2002 when the Supreme Court refused him leave to appeal.

Relying on Article 6 § 1 (right to a fair trial within a reasonable time) of the European Convention on Human Rights, the applicant complained about the excessive length of the criminal proceedings brought against him, which had lasted a total of seven years and three months.

Although Mr Narinen’s case had been complex, with the Court of Appeal’s file containing some 7,000 pages, the European Court of Human Rights found that there had been no convincing explanation as to why it had taken that court approximately three years to examine it, a heavy caseload not being a valid excuse for delay.

Given what had been at stake for Mr Narinen and that there had been no oral hearing before the Court of Appeal, the Court held, unanimously, that the length of proceedings before that court had been excessive and that there had been a violation of Article 6 § 1 of the Convention. Mr Narinen was awarded 3,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,500 for costs and expenses. (The judgment is available only in English.)

The applicant, Leszek Gębura, is a Polish national who was born in 1954 and lives in Starachowice (Poland).

At the relevant time, Mr Gębura was serving a prison sentence in Tarnów Mościce Prison for three separate convictions. Mr Gębura became eligible for conditional release after having served three-quarters of the overall term of his imprisonment, that is to say on 6 January 1999. After that date, he made several requests to be released, which, however, were denied on account of insufficient progress in his rehabilitation. On 22 March 2000 Tarnów Regional Court gave a decision ordering the applicant’s conditional release for a three-year probationary period. The decision was upheld on appeal on 12 April 2000. The Court of Appeal dispatched a certified copy of that decision on the same day and it was received by the Regional Court on 13 April, which then forwarded it to the prison ordering Mr Gębura’s release. Those documents were received by the prison administration on 14 April 2000, the day on which Mr Gębura was finally released. According to Mr Gębura, the Court of Appeal’s decision was given on 12 April at 9 a.m. and he was only released on 14 April at 4 p.m..

Relying, in particular, on Article 5 § 1 (right to liberty and security), Mr Gębura complained that, even though the final decision by the Court of Appeal was made in the morning of 12 April 2000, his release from prison was delayed by a further 48 hours.

The Court observed that, once conditional release had been granted, Mr Gębura had the right, as provided for by domestic law, to be released without delay on completion of the necessary administrative formalities, reiterating that those formalities could not justify a delay of more than a few hours. In the Court’s view, the Government not having explained what means had been used for the dispatching of the relevant decision and whether that had been done without delay, it could not be said that the time it took to implement Mr Gębura’s release (48 hours) had been kept to a minimum.

Consequently, Mr Gębura’s continued detention following the final decision to release him conditionally could not be considered “lawful” and the Court held, unanimously, that there had been a violation of Article 5 § 1. Given the frustration and anxiety which must have been caused by that delay, Mr Gębura was awarded EUR 1,500 in respect of non-pecuniary damage. (The judgment is available only in English.)

The applicant, Ryzard Zwierzyński, is a Polish national who was born in 1949 and lives in Olsztyn (Poland).

In November 1993 the Polish courts upheld a decision declaring null and void the expropriation of real estate that had belonged to his father. The applicant complained to the Court that his case had not been heard within a reasonable time and that his right of property had been infringed as a result of proceedings that had been unfair.

In a judgment of 16 June 2001 the Court held unanimously that there had been a violation of Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property). In a judgment of 2 July 2002 it ruled on the question of just satisfaction.

The Polish Government requested the Court to revise the judgments on account of the subsequent reopening of the proceedings for the division of the estate.

The Court decided unanimously to dismiss the request for revision. (The judgment is available only in French.)

Alay v. Turkey (no. 1854/02) Violation of Article 5 §§ 1 (c) and 4

The applicant, Hatip Alay, is a Turkish national who was born in 1960 and lives in Diyarbakır (Turkey).

On 11 November 2001 the applicant was arrested and taken into police custody in the course of an operation against the PKK (Workers’ Party of Kurdistan). Shortly after his placement in pre-trial detention in Diyarbakır remand prison he was sent back to the gendarmes, with the authorisation of a judge, for further questioning. In October 2002 the applicant was sentenced to three years and nine months’ imprisonment.

The applicant alleged, in particular, that his detention on gendarmerie premises after he had already been placed in pre-trial detention infringed Article 5 (right to liberty and security) and that he had been unable to challenge the measure.

The Court held unanimously that there had been a violation of Article 5 § 1 (c), as the applicant had been held for about ten days in a situation equivalent to police custody. It further held unanimously that there had been a violation of Article 5 § 4, as the applicant had had no remedy by which to complain of his detention on gendarmerie premises. The Court awarded the applicant EUR 2,500 in respect of non-pecuniary damage and EUR 700 for costs and expenses. (The judgment is available only in French.)

Çiloğlu and Others v. Turkey (no. 73333/01) No violation of Article 11

From May 1995 onwards a number of demonstrations were held, on the initiative of prisoners’ relatives, in the form of weekly sit-ins in front of Galatasaray High School in Istanbul, to support a protest by prisoners against plans to build an F-type prison. The applicants took part in one of these sit-ins on 26 September 1998. The group of demonstrators, consisting of some 60 people, were ordered by the police to disperse. When they refused, the police used tear gas and took the applicants into custody.

The applicants were released on 28 September 1998. Criminal proceedings were brought against them for a breach of the law on public gatherings and demonstrations. The court hearing the case decided in January 2001 to defer its judgment.

Moreover, a complaint by the applicants that there had been abuse of authority and ill-treatment led to a finding that there was no case to answer.

Relying on Article 3 (prohibition of inhuman and degrading treatment), the applicants complained about the use of tear gas (pepper spray) to disperse the group of demonstrators. They further complained, under Article 11 (freedom of assembly and association) in particular, that their right to freedom of expression and peaceful assembly had been infringed.

The Court observed that the applicants had not submitted any medical report to show that they had suffered, as alleged, from the harmful effects of exposure to gas. Having been released shortly after their arrest, they also failed to have themselves examined by a doctor in order to establish the possible adverse effects of the gas.

As regards the bruising indicated in the medical reports concerning seven of the applicants, the Court found that these injuries appeared to have occurred during their jostle with the police at the time of the arrest. Accordingly, the Court considered that the injuries had not attained a sufficient degree of severity to fall within the scope of Article 3. It therefore held unanimously that there had been no violation of Article 3.

Moreover, the Court noted that the demonstration in question had been unlawful and that the demonstrators had been informed of this. It was obvious that such a gathering in a public place, held regularly every Saturday morning for over three years, had become an almost permanent event which had the effect of disrupting traffic and clearly caused a breach of the peace. In view of the length and number of previous demonstrations, the Court considered that the authorities had reacted within the margin of appreciation afforded to States in such matters. It therefore held, by five votes to two, that there had been no violation of Article 11. (The judgment is available only in French.)

The applicant, Kazım Ünlü, is a Turkish national who was born in 1966 and lives in Pertek (Turkey).

At the material time the applicant was a geography teacher at Atatürk High School in Tunceli and a member of the trade union EĞITIM-SEN (Union of Employees in Education, Science and Culture). In December 2001 the Governor of the region under emergency rule requested the applicant’s relocation to a province outside that region.

Relying on Articles 11 (freedom of assembly and association) and 13 (right to an effective remedy), the applicant submitted that he had been relocated on account of his union membership.

The Court considered that the decision to relocate the applicant had been taken in the context of the normal administration of the State’s civil service and observed that the applicant’s status provided for the possibility of a transfer. The decision in question had not interfered with the applicant’s right to freedom of association. Moreover, he had failed to substantiate his allegation and had not shown that the impugned decision had prevented him from engaging in trade-union activities after his transfer. In those circumstances, the Court held unanimously that there had been no violation of Article 11.

As there had been no remedy under Turkish law by which to dispute the decision taken by the Governor of the region under emergency rule to relocate the applicant, the Court held unanimously that there had been a violation of Article 13.

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

Yakışan v. Turkey (no. 11339/03) Violation of Article 6 § 1 (length)

The applicant, Erdoğan Yakışan, is a Turkish national who was born in 1970. He is currently being held in Diyarbakır Prison (Turkey).

The applicant was arrested and taken into police custody on 28 February 1994, notably on suspicion of being a member of the PKK (Workers’ Party of Kurdistan). On 18 June 1998, and again on 19 October 2000, he was sentenced to the death penalty, which was commuted to life imprisonment. The conviction and sentence having been quashed by the Court of Cassation, the case is still pending before Diyarbakır Assize Court.

The applicant complained of the length of his detention pending trial (four years, three months and 20 days) and of the proceedings against him (almost 13 years to date). He relied on Article 5 § 3 (right to liberty and security) and Article 6 § 1 (right to a fair hearing).

The Court held unanimously that there had been a violation of Article 5 § 3 and Article 6 § 1. It awarded the applicant EUR 12,000 in respect of non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.)

In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention:

Mehmet Hanifi Kaya v. Turkey (no. 17742/03) Violation of Article 1 of Protocol No. 1

The applicant, Mehmet Hanifi Kaya, is a Turkish national who was born in 1946 and lives in Gaziantep (Turkey).

The applicant complained under Article 1 of Protocol No. 1 (protection of property) and Article 6 § 1 (right to a fair hearing within a reasonable time) of the delay in payment of additional compensation for expropriation.

The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and did not consider it necessary to examine separately the complaint under Article 6 § 1. It awarded the applicant EUR 1,000 in respect of pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in French.)

Hancock and Others v. United Kingdom (nos 63470/00, 63473/00, 63474/00, 63645/00 and

The six applicants are all United Kingdom nationals who complained that, because they were men, they had been denied social security benefits equivalent to those received by widows.

They relied on Articles 8 (right to respect for private and family life), 14 (prohibition of discrimination) and Article 1 of Protocol No. 1 (protection of property).

Both cases have been struck out of the list following friendly settlements in which a total of 67,211.14 pounds sterling (GBP) (approximately EUR 100,290) is to be paid to the applicants, sums ranging from GBP 4,662.58 (approximately EUR 6,958) and GBP 25,820.51 (approximately EUR 38,529). (The judgments are available only in English.)

In the following case, the applicant, relying on Article 6 § 1 (right to a fair hearing within a reasonable time), complained in particular about the excessive length of (non-criminal) proceedings.

Kryszkiewicz v. Poland (no. 77420/01) Violation of Article 6 § 1 (length)

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).

Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)
Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)

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.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Donovan v. United Kingdom - 63466/00 [2007] ECHR 235 (29 March 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/235.html Cite as: [2007] ECHR 235