issued by the Registrar of the Court

ECHR 259 (2013)

17.09.2013

Chamber judgments concerning the Republic of Moldova, Montenegro,

Poland, Portugal, Romania, and Turkey

The European Court of Human Rights has today notified in writing the following nine Chamber

judgments¹none of which are final. The judgments in French are indicated with an asterisk (*).

The Court has also delivered today its judgment in the case of Söyler v. Turkey (application no. 29411/07), for

which a separate press release has been issued.

Danalachi v. the Republic of Moldova (application no. 25664/09)

The applicant, Angela Danalachi, is a Moldovan national who was born in 1972 and lives in Cantemir

(Republic of Moldova). She was convicted of misappropriation and ordered to pay a fine in a

judgment which became final in November 2008. On 20 February 2009, a court replaced the fine,

which she had failed to pay, with an order for her detention for 12 months, and she was detained on

the same day. The judgment was quashed by the appeal court on 12 March 2009, as Ms Danalachi

had not been represented by a lawyer. She was released on 31 March 2009, her fine having been

paid in the meantime. Relying in particular on Article 5 § 1 (right to liberty and security) of the

European Convention on Human Rights, Ms Danalachi complained that her detention had been

unlawful after the appeal court had quashed the judgment ordering her detention.

Violation of Article 5 § 1

Just satisfaction: EUR 5,000 (non-pecuniary damage)

Mijanović v. Montenegro (no. 19580/06)

The applicant, Borislav Mijanović, was a Montenegrin national who was born in 1930 and lived in

Podgorica. He died in 2010 and his daughter, Marina Mijanović Markuš, maintained his application

before the Court in his stead. The case concerned the lengthy non-enforcement of a court judgment

given in September 2003 in Mr Mijanović’s favour, enforceable as of September 2004, ordering a

joint-stock company mostly consisting of State-owned capital to pay him compensation.

Ms Mijanović Markuš complained, in substance, that the non-enforcement of the judgment had

violated her rights under Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1

(protection of property) to the Convention.

Violation of Article 6 § 1

Violation of Article 1 of Protocol No. 1

Just satisfaction: In respect of pecuniary damage, Montenegro is to pay Ms Mijanović Markuš,

within three months from the date on which the judgment becomes final, the award made by the

national courts.

Under Articles 43 and 44 of the Convention, Chamber judgments are not final. During the three-month period following a 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

Brzuszczyński v. Poland (no. 23789/09)

The applicant, Piotr Brzuszczyński, is a Polish national who was born in 1959 and is currently in

prison. He was convicted of a number of offences, including aiding and abetting murder, committed

in 2001, and sentenced to a cumulative penalty of 15 years’ imprisonment in a judgment which was

eventually upheld in December 2008. Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial and right

to obtain attendance and examination of witnesses), he complained that he had not had a fair trial,

as his conviction had been based on statements made by a co-suspect who had committed suicide

before the trial started, making it impossible for Mr Brzuszczyński to examine him as a witness.

No violation of Article 6 § 1 in conjunction with Article 6 § 3

Przemyk v. Poland (no. 22426/11)

The applicant, Leopold Przemyk, is a Polish national who was born in 1940 and lives in Warsaw. The

case concerned the criminal proceedings brought against a group of police officers who were

acquitted in 1984 of beating to death Mr Przemyk’s son in 1983. In 1990, the trial was reopened, the

trial court finding that the original proceedings had been seriously defective, in particular because of

the authorities’ tampering with evidence. After an initial acquittal of one and the conviction of two

other former police officers, the judgment was quashed by the Supreme Court and remitted in

respect of the police officer who had been acquitted. In May 2008, the police officer was convicted

of battery, but the appeal court, in December 2009, quashed the judgment and discontinued the

proceedings, finding that this offence had become time-barred in 2005. The judgment was

eventually upheld by the Supreme Court in July 2010. Relying on Article 2 (right to life), Mr Przemyk

complained that the authorities had not conducted an effective investigation to establish liability for

his son’s death. He further submitted that the proceedings had not concerned an ordinary crime but

one committed by State officials for reasons of political intimidation during the communist regime.

Violation of Article 2 (procedure) – on account of the ineffective investigation

Just satisfaction: EUR 20,000 (non-pecuniary damage)

Welsh and Silva Canha v. Portugal (no. 16812/11)*

The applicants, Eduardo Pedro Welsh and Gil da Silva Canha, are Portuguese nationals who were

born in 1967 and 1961 and live in Funchal (Portugal). At the relevant time they were deputy director

and director respectively of the satirical newspaper Garajau. A criminal complaint was lodged

against them by the Vice-President of the Madeira regional government, who had been the subject

of a number of articles and a front cover published by the applicants concerning his purchase of

some land. The applicants were acquitted initially but were subsequently convicted of defamation by

the Lisbon Court of Appeal, which took the view that they had not succeeded in demonstrating the

truth of their allegations. The applicants argued that their conviction for defamation had infringed

their rights under Article 10 (freedom of expression).

Violation of Article 10

Just satisfaction: EUR 5,000 (costs and expenses)

Olariu v. Romania (no. 12845/08)*

The applicant, Daniel Olariu, is a Romanian national who was born in 1977 and lives in Iaşi

(Romania). He was placed in pre-trial detention in Iaşi Prison in January 1999, before being released

in October of the same year. On 27 March 2002, he was sentenced to eight years’ imprisonment for

fraud. After evading sentence he was arrested by the Iaşi police on 30 June 2007 and imprisoned on

the same day. Relying in particular on Article 3 (prohibition of inhuman or degrading treatment),

Mr Olariu complained of his conditions of detention in Iaşi Prison in 1999 and since 30 June 2007 and

alleged that the prison authorities had failed to provide him with the necessary medical care.

Violation of Article 3 – regarding the applicant’s conditions of detention in Iaşi Prison since 30 June

2007

Just satisfaction: EUR 1,000 (non-pecuniary damage)

Amine Güzel v. Turkey (no. 41844/09)

The applicant, Amine Güzel, is a Turkish national who was born in 1980 and lives in Diyarbakır

(Turkey). She was arrested in February 2008 following a gathering in Diyarbakır to make a press

statement against military operations by the Turkish security forces. Relying notably on Article 3

(prohibition of inhuman or degrading treatment), she alleged in particular that the investigation into

her complaints that she had been ill-treated by police officers during her arrest and during the

subsequent police custody had been ineffective.

Violation of Article 3 (procedure) – on account of the ineffective investigation

Just satisfaction: EUR 12,500 (non-pecuniary damage) and EUR 1,500 (costs and expenses)

Eşim v. Turkey (no. 59601/09)

The applicant, Uğur Eşim, is a Turkish national who was born in 1969 and lives in İstanbul. He was

severely wounded by gunshots while serving as a conscript in the army in a clash between security

forces and a group of terrorists in 1990. As a result he was permanently disabled and was discharged

from the army. In 2007, a medical examination revealed, in particular, that he had a bullet in his

head, the removal of which would be life-threatening. Mr Eşim’s subsequent application for

compensation – alleging that the bullet had remained in his head on account of medical negligence

and that this had not been taken into account in calculating his disability pension – was dismissed.

Two subsequent actions which he brought were rejected by the courts as being out of time, the

decisions eventually being upheld in April 2009 by the Supreme Military Administrative Court.

Mr Eşim complained that this decision had violated his rights, in particular, under Article 6 § 1 (right

to a fair trial).

Violation of Article 6 § 1 (right of access to a court)

Just satisfaction: EUR 3,000 (non-pecuniary damage)

Fazlı Kaya v. Turkey (no. 24820/05)

The applicant, Fazlı Kaya, is a Turkish national who was born in 1960 and is currently serving a prison

sentence in Edirne (Turkey). He was convicted of membership of an illegal organisation and

sentenced to 12 years and six months’ imprisonment in a judgment which was eventually upheld in

December 2004. Relying in particular on Article 6 § 3 (c) (right to a fair trial / right to legal assistance

of own choosing), Mr Kaya complained that he had been denied access to a lawyer during his police

custody.

Violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 – on account of the lack of legal

assistance available to the applicant while in police custody

Just satisfaction: EUR 1,500 (non-pecuniary damage) and EUR 1,000 (costs and expenses)