issued by the Registrar of the Court

ECHR 338 (2015)

27.10.2015

Judgments of 27 October 2015

The European Court of Human Rights has today notified in writing six judgments¹:

Five Chamber judgments are summarised below; for one other, in the case of R.E. v. the United

Kingdom (application no. 62498/11), a separate press release has been issued.

The judgments in French below are indicated with an asterisk (*).

Konstantin Stefanov v. Bulgaria (application no. 35399/05)

The applicant, Konstantin Stefanov, is a Bulgarian national who was born in 1974 and lives in Plovdiv

(Bulgaria), where he practises as a lawyer. The case concerned the non-payment of a legal-aid fee to

him, as well as a fine imposed on him for refusing to represent a defendant.

In criminal proceedings on charges of aggravated theft against a defendant who could not afford to

pay for a lawyer, the Plovdiv District Court appointed Mr Stefanov as the defendant’s counsel in a

hearing in June 2005. When asked whether there was an obstacle to proceed with the hearing,

Mr Stefanov replied that he would represent the defendant if the court undertook to comply with

the Bar Act and determined his remuneration at or above the minimum fee of the equivalent of 280

euros. The presiding judge refused to determine the minimum remuneration at that point.

Mr Stefanov then declined to act as counsel for the defendant and left the courtroom. The court

fined him the equivalent of 260 euros for having refused to represent the defendant and proceeded

with the hearing, having appointed another lawyer as the defendant’s representative.

Mr Stefanov appealed against the fine, maintaining that he had not been appointed by the District

Court in accordance with the law. His appeal was dismissed by the regional court in a final decision

of July 2005.

Mr Stefanov complained in particular that by not paying his legal representation fees and fining him,

the Plovdiv District Court had breached his rights under Article 1 of Protocol No. 1 (protection of

property) to the European Convention on Human Rights.

No violation of Article 1 of Protocol No. 1

Koni v. Cyprus (no. 66048/09)

The applicant, Constantia Koni, is a Cypriot national who was born in 1951 and lives in Nicosia.

The case concerned the divorce proceedings brought by Ms Koni’s husband in May 2006. On the

date when the first hearing was to take place, in June 2006, she asked the family court for additional

time to prepare her submission, which the court granted. She also applied for legal aid and, in

October 2006, requested the court to grant her more time, as her legal aid application was pending.

The court adjourned the case. Ms Koni did not appear at the hearing in the main proceedings which

took place in November 2006. The court proceeded to hear her husband’s evidence in her absence

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

and then granted the petition for divorce. Ms Koni appealed, submitting that the family court had

wrongly proceeded with the hearing in her absence and that it had wrongly decided on the

dissolution of the marriage. Her appeal was dismissed by the family court of appeal in June 2009.

Ms Koni complained that the proceedings before the family courts had been in breach of, in

particular, Article 6 (right to a fair trial) of the Convention, because the family court had held the

hearing on the divorce petition in her absence and before examining her application for legal aid,

and because the appeal court had not properly considered her submissions.

Violation of Article 6

Just satisfaction: 8,000 euros (EUR) (non-pecuniary damage) and EUR 2,056 (costs and expenses)

Brânduşe v. Romania (no. 2) (no. 39951/08)

The applicant, Ioan Brânduşe, is a Romanian national who was born in 1951 and lives in Şomoşcheş,

Arad County (Romania). The case concerned his complaint about the conditions of his detention and

of being unable to vote while in prison.

While serving a prison sentence for fraud, Mr Brânduşe spent five days, in May and June 2008, in a

cell in Jilava Prison which, according to his submissions, was dirty and lacked access to warm water.

He maintains that on several occasions he was kept in the county court’s detention room where he

was exposed to passive smoking. In the parliamentary elections held in November 2008, while he

was in prison, he was not allowed to vote.

Mr Brânduşe complained that the conditions of his detention in Jilava Prison and in the court’s

detention facilities, where he was kept together with smokers, had been in breach of Article 3

(prohibition of inhuman or degrading treatment). Relying in substance on Article 3 of Protocol No. 1

(right to free elections), he complained that he had not been allowed to vote in the parliamentary

elections of November 2008.

Violation of Article 3 (conditions of detention)

Violation of Article 3 of Protocol No. 1

Just satisfaction: EUR 1,500 (non-pecuniary damage)

Özpolat and Others v. Turkey (no. 23551/10)*

The applicants, Hayri Özpolat, Havva Gezer, Cahide Özpolat, Yıldız Özpolat, Emine Özpolat, Selahattin

Özpolat, Fahri Özpolat and Suna Yavuz, are Turkish nationals who were born in 1988, 1979, 1983,

1964, 1991, 1965, 1987 and 1983 respectively and live in Diyarbakır (Turkey). They are relatives of

İskender Özpolat and Mehmet Özpolat, who died on 13 and 14 July 2007 respectively.

The case concerned the deaths of İskender Özpolat and Mehmet Özpolat during a police operation,

and the subsequent investigation.

On 13 July 2007 at about 2.20 p.m., having received reports that a person had been wounded by a

firearm, police officers surrounded the Özpolat family’s home. At 5.20 p.m. Mehmet Özpolat

appeared on the roof with a firearm and was neutralised by the police. The public prosecutor

applied to have him taken into police custody. Complaining of stomach pains, Mehmet Özpolat was

taken to hospital, where he died of a cervical haemorrhage at 4.25 a.m. on 14 July 2007. The police

officers had also attempted to persuade İskender Özpolat to come out of the building, but he had

started firing shots at the officers, who had to kill him in order to neutralise him.

The public prosecutor’s office opened a preliminary investigation into alleged offences of

unintentional homicide, abuse of power and failure to ensure the prompt transfer of an injured

person to hospital. However, on 24 June 2009 the public prosecutor’s office made an order

discontinuing the proceedings, finding that the police officer who had fired the fatal shot at İskender

Özpolat had acted in self-defence. On the other hand, the police officer who had struck Mehmet

Özpolat several times on the head with the butt of his weapon in an attempt to neutralise him had

exceeded the limits of the lawful use of force. As the police officer too had died, however, the

prosecutor’s office ruled that there was no cause to prosecute him. The applicants lodged an

objection against the discontinuance order, arguing that the facts had not been clearly established.

Their objection was dismissed.

At the same time, Hayri Özpolat filed a criminal complaint, submitting that Mehmet Özpolat’s death

had been caused by the delay in transferring him to hospital and that the police officers had to be

held responsible. However, following an administrative investigation, the Diyarbakır Administrative

Council found that the report on the preliminary investigation and the documents in the case file did

not constitute sufficient evidence to institute criminal proceedings against the police officers

concerned. That decision was upheld by the Administrative Court. In its discontinuance order of

24 June 2009 the public prosecutor's office also held that there were no grounds for opening an

investigation in respect of the officers of the Diyarbakır security police, in view of the conclusions

reached by the Diyarbakır Administrative Council.

Relying in particular on Article 2 (right to life), the applicants complained about their relatives’

deaths at the hands of the security forces. They submitted in particular that the operation resulting

in the deaths had not been planned in such a way as to minimise recourse to lethal force. They also

complained that Mehmet Özpolat had been subjected to violence during his arrest and had not

received prompt medical treatment. Lastly, they complained that the State authorities had failed to

comply with their obligation to carry out a thorough, impartial and effective investigation.

No violation of Article 2 (right to life) – in respect of İskender Özpolat

Violation of Article 2 (right to life) – in respect of Mehmet Özpolat

No violation of Article 2 – as regards the complaint that the investigation into the use of lethal force

had lacked independence

Violation of Article 2 – as regards the complaint that the investigation into the alleged lack of

prompt medical treatment for Mehmet Özpolat had lacked effectiveness and independence

Just satisfaction: EUR 65,000 (non-pecuniary damage) and EUR 6,000 (costs and expenses) to the

applicants jointly

N.J.D.B. v. the United Kingdom (no. 76760/12)

The applicant, Mr N.J.D.B., is a British national who was born in 1954 and lives in Hertfordshire.

The case concerned the proceedings brought, in Scotland, by Mr N.J.D.B. in which he sought contact

with his son. Following his separation from his son’s mother shortly after the child’s birth in 2000,

contact between Mr. N.J.D.B. and his son continued. However, contact stopped in August 2003.

Mr N.J.D.B initiated court proceedings and the court granted Mr N.J.D.B. parental rights and

responsibilities and contact.

The relationship between the parents deteriorated and Mr N.J.D.B. initiated further court

proceedings in December 2004 seeking a residence order in respect of his son. Following a number

of procedural hearings, a substantive hearing began on 9 September 2008 and concluded on

2 November 2009 after 52 non-consecutive court days. The court concluded that it was in the child’s

best interests that he did not have contact with his father. Mr N.J.D.B. appealed the decision not to

order contact and further argued that the action had not been concluded within a reasonable time.

His appeal was not upheld. Mr N.J.D.B. applied for legal aid funding for an appeal to the Supreme

Court but legal aid was refused in April 2011. Mr N.J.D.B. was represented before the Supreme Court

by his lawyers on a pro-bono basis. On 23 May 2012, the Supreme Court refused Mr. N.J.D.B’s

appeal.

Relying on Article 6 § 1 (right to a fair trial within a reasonable time/access to court/equality of arms)

and Article 8 (right to respect for private and family life), Mr N.J.D.B. complained about the excessive

length of the child contact proceedings and the refusal of legal aid to pursue an appeal to the

Supreme Court.

No violation of Article 6 § 1 – as regards the refusal to award legal aid for Mr N.J.D.B.’s appeal to the

Supreme Court

Taking note of the terms of the UK Government’s declaration in respect of the complaint concerning

the delay in the proceedings, the Court further decided to strike this part of the application out of its

list of cases.

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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.