- Judgment date: 2010-03-04
- Communication date: 2013-09-23
- Application number(s): 74018/11
- Country: TUR
- Relevant ECHR article(s): 6, 6-1, 11, 11-1
Violation of Art. 6
Violation of P1-1
- Result: Violation SEE FINAL JUDGMENT
- Probability: 0.672338
- Prediction: No violation
Communication text used for prediction
The applicant, Mr M.A.K., is a Turkish national, who was born in 1973 and is serving a prison sentence in Diyarbakır prison.
He is represented before the Court by Mr S. Akbaş, a lawyer practising in Diyarbakır.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 April 2010 the applicant attended the reading out of a press statement in front of the court building in Diyarbakır.
He was subsequently taken into police custody.
According to the arrest report, he was apprehended as the police officers recognised him from photographs taken during a meeting which had taken place in Diyarbakır on 28 March 2006.
In the case file, there are three photographs: in one photograph, a man is seen with a paving stone in his hand; in the second photograph, a man is standing on the street together with four other men; in the third photograph, a man is seen standing with seven other men.
On the same day the applicant’s statement was taken at the Diyarbakır police headquarters.
The applicant was asked whether he was a member of a political party or a non-governmental organisation and whether he had participated in two demonstrations held on 6 February 2005 and 28 March 2006 in Diyarbakır and whether he had thrown stones at the security forces.
The applicant maintained that he was a member of the BDP (Party for Peace and Democracy) and that he had not participated in the demonstrations held on the aforementioned dates.
On 21 April 2010 the applicant was questioned by the Diyarbakır public prosecutor.
He submitted that he was the man in the second photograph and that he had not participated in any violence.
He also maintained that he was the person in the first photograph.
He noted, however, that this photograph had not been taken during a demonstration and that he had not thrown stones at the police.
On the same day the applicant was detained on remand.
On 22 April 2010 the Diyarbakır public prosecutor filed an indictment against the applicant, charging him with membership of the PKK under Articles 220(6) and 314 of the Criminal Code and violating the Meetings and Demonstration Marches Act (Law No.
The public prosecutor alleged, on the basis of a video recording and photographs taken from that recording, that the applicant had participated in the demonstration on 28 March 2006 upon the instructions of the PKK and thrown stones at the police.
On 15 June 2010 the Diyarbakır Assize Court held the first hearing in the case.
The applicant maintained before the court that he had not participated in the demonstration held on 28 March 2006 in Diyarbakır.
He further submitted that although the person in the photographs in the case file resembled him, it was not known whether those photographs had been taken on that date and during the demonstration at issue.
The public prosecutor alleged once again that according to photographs taken from video recordings, the applicant was seen throwing stones at the police on 28 March 2006.
On 26 October 2010 the Diyarbakır Assize Court convicted the applicant under Articles 220(6) and 314(3) and (4) of the Criminal Code and Articles 28(1), 32 and 33 of the Meetings and Demonstration Marches Act (Law No.
The court sentenced the applicant to a total of eight years and four months’ imprisonment.
The first-instance court based its judgment on an expert report dated 22 April 2010 regarding the police force’s video recording, the arrest report, the incident report and the report on the photographs.
In its judgment, the court found it established that the demonstration of 28 March 2006 had been organised upon the call of the PKK; that the applicant had participated in this demonstration as an organiser; that he had failed to leave despite the police warnings to disperse and that he had thrown stones at the police.
The first‐instance court made reference to a decision of the Court of Cassation (decision no.
2008/44), in which it had held: “When the organisation (the PKK) makes a public call for participation in a demonstration, that call does not have to target a specific person.
These acts (demonstrations) are realised on behalf of the organisation within its knowledge and in line with its will.
Therefore, the acts of the accused who participate in these demonstrations will constitute the offence...proscribed in Article 314 (2) of the Criminal Code.” In the judgment, the court further noted that according to the expert report dated 22 April 2010, there were images showing the applicant smashing paving stones and waiting with other people to throw stones on the day of the demonstration.
On 5 December 2010 the applicant appealed against the judgment of 26 October 2010.
In his petition, the applicant maintained that the photograph in which he was seen with a stone in his hand had not been taken during a demonstration and that this photograph was the only evidence for his conviction.
On 30 May 2011 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the applicant’s conviction of membership of the PKK under Articles 220(6) and 314 of the Criminal Code and his conviction under Articles 32 and 33 of Law No.
2911) for not leaving the demonstration and throwing stones at the police.
The high court on the other hand quashed the judgment in so far as it concerned the conviction under Article 28(1) of Law no.
2911 as it was not found established that the applicant had been one of the organisers of the demonstration of 28 March 2006.
Relevant domestic law Article 220(6) of the Criminal Code read, at the time of the events, as follows: “...Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.” Article 314(2) of the Criminal Code reads as follows: “Anyone who becomes a member of an (illegal) organisation mentioned in the first paragraph of this Article shall be sentenced to a term of imprisonment of from five to ten years.” COMPLAINTS The applicant maintains under Article 6 §§ 1 and 3 (d) of the Convention that the dates on which the photographs which constituted the basis for his conviction had been taken were unknown and that the national court had failed to take into consideration his submissions and to render a judgment containing sufficient reasoning.
The applicant complains under Article 6 § 1 of the Convention that the first-instance court took only digital evidence into consideration despite the fact that digital evidence had to be supported by concrete evidence.
The applicant further complains under Article 6 § 1 of the Convention that there was no evidence in the case-file demonstrating that he had participated in a demonstration upon an instruction of the PKK but that he was nevertheless convicted of membership of the PKK.
The applicant complains that his rights under Articles 5, 10 and 11 of the Convention were violated, as his conviction by the Diyarbakır Assize Court was neither prescribed by law nor proportionate.
CASE OF ANDREYEV v. RUSSIA
(Application no. 32991/05)
4 March 2010
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Andreyev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar,
Having deliberated in private on 9 February 2010,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 32991/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Aleksandrovich Andreyev (“the applicant”), on 12 August 2005. 2. The applicant was represented by Mr S. Matytsyn, a lawyer practising in Voronezh. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 12 June 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1964 and lives in Voronezh. 5. On 12 July 2002 the applicant rented out his flat to M.
6. On 26 September 2002 M. allegedly forgot to turn off water in the bathroom and thus damaged neighbouring flats of Sh. and A. 7. Subsequently M. compensated damages to Sh., but refused to pay A., considering the sums claimed excessive. 8. On 20 November 2002 A. brought proceedings against the applicant for damages. M. took part in the proceedings as a co‐defendant. 9. On 12 November 2003 the Justice of the Peace of the 3rd Court Circuit ordered the applicant to pay A. 40,983 Russian roubles (RUB) in damages and to pay the authorities RUB 1,639.49 of legal costs. 10. The applicant lodged an appeal and on 28 April 2004 the Sovetskiy District Court of Voronezh quashed the judgment, found that there was no fault by the applicant in the damage caused to the A. 's flat and awarded A. RUB 15,261 from M.
11. On 27 August 2004 A. lodged an application for supervisory review of the appeal judgment. 12. On 14 February 2005 the Presidium of the Voronezh Regional Court quashed that appeal judgment and upheld the judgment of 12 November 2003. The Presidium reassessed the evidence and found that though on 25 September 2002 the applicant concluded an agreement under which he should have obtained the right of property to the flat, this right was duly registered only on 10 April 2003. Therefore before that date the applicant could not rent out his flat to anyone. Thus he remained the flat's sole de jure owner and should have been responsible for it. 13. On 7 Mach 2007 the applicant transferred to the bailiffs RUB 42,322.49 in accordance with the Presidium decision of 14 February 2005. II. RELEVANT DOMESTIC LAW
14. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court's judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW
15. The applicant complained under Article 6 of the Convention and under Article 1 of Protocol No. 1 that the final appeal judgment of 28 April 2004 had been quashed via supervisory review. In so far as relevant, these Articles read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.[... ]”
16. The Government contested that argument. They argued, inter alia, that the supervisory review had been compatible with the Convention as it was aimed to correct a fundamental defect. They referred to a definition of a fundamental defect given in the case of Luchkina as “a jurisdictional error, serious breaches of court procedure or abuses of power” (Luchkina v. Russia, no. 3548/04, § 21, 10 April 2008). In the Government's view, the appeal court ignored that at the date of the infliction of the damage the applicant was still a de jure owner of the flat. A. Admissibility
17. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
18. The Court reiterates that for the sake of legal certainty implicitly required by Article 6, final judgments should generally be left intact. They may be disturbed only to correct fundamental errors. The mere possibility of there being two views on the subject is not a ground for re‐examination (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003‐IX). 19. The Court further reiterates that it has frequently found violations of the principle of legal certainty and of the right to a court in the supervisory‐review proceedings governed by the Code of Civil Procedure in force since 2003 (see, amongst other authorities, Bodrov v. Russia, no. 17472/04, § 31, 12 February 2009). 20. In the present case the Presidium disagreed with the assessment made by the appeal court which is not, in itself, an exceptional circumstance warranting the quashing of a binding and enforceable judgment (see Kot, cited above, § 29). It was not claimed before the supervisory-review instance that the previous proceedings had been tarnished by a fundamental defect, such as, in particular, a jurisdictional error, serious breaches of court procedure or abuses of power (see, amongst other authorities, Luchkina, cited above, § 21). The court discerns no other fundamental defect to justify the quashing of the final judgment on supervisory review in the present case. Accordingly, there has been a violation of Article 6 § 1 of the Convention. 21. The Court further observes that as a result of supervisory review the applicant was deprived of his possessions (see paragraph 13 above). Accordingly, there has also been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. Article 41 of the Convention provides:
“If the Court finds that there has bee.n a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
23. The applicant claimed 52,000 Russian roubles (RUB) in respect of pecuniary damage (RUB 42,322.49 paid in accordance with the Presidium decision, plus relevant expenses and inflation losses). He also claimed 1,500 euros (EUR) in respect of non-pecuniary damage. 24. The Government noted that no satisfaction should be awarded since the applicant's rights were not violated and he had failed to substantiate his allegedly excessive and unreasonable claims. 25. The Court reiterates that in general the most appropriate form of redress in respect of violations found is to put applicants as far as possible in the position they would have been in if the Convention requirements had not been disregarded (see, amongst other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85, and Dovguchits v. Russia, no. 2999/03, § 48, 7 June 2007). 26. The Court observes that in the present case the applicant was eventually forced to pay an amount of RUB 42,322.49 contrary to a final judgment in his favour which had relieved him of any payment obligation. There is therefore a causal link between the quashing of the final judgment and the pecuniary loss claimed by the applicant. 27. As to the claim for the inflation losses, on which the applicant submitted a detailed calculation, the Government made no comment in respect of the methods used by the applicant for that calculation. Nor have the Government provided the Court with any alternative one. Therefore the Court accepts the applicants' calculation in respect of the inflation losses. 28. The Court therefore awards the applicant the sum claimed (EUR 1,470), plus any tax that may be chargeable. 29. The Court furthermore finds that the applicant has suffered non‐pecuniary damage as a result of the violation found which cannot be compensated by the mere finding of a violation. Having regard to the circumstances of the cases and making its assessment on an equitable basis, the Court awards the applicant the sum of EUR 1,500 in respect of non‐pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses
30. The applicants also claimed RUB 5,000 for the costs and expenses incurred. 31. The Government asserted that the applicant had failed to substantiate the claims. 32. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to grant the applicant's claim in full and to award him the sum of EUR 142. C. Default interest
33. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 in respect of the quashing of the final appeal judgment in the applicant's favour via supervisory review;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 1,470 (one thousand four hundred and seventy euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 142 (one hundred and forty two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 4 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident