issued by the Registrar of the Court

ECHR 114 (2017)

04.04.2017

Judgments and decisions of 4 April 2017

The European Court of Human Rights has today notified in writing 18 judgments¹and one decision²:

six Chamber judgments are summarised below; separate press releases have been issued for four

other Chamber judgments in the cases of Thimothawes v. Belgium (application no. 39061/11),

Matanović v. Croatia (no. 2742/12), Güzelyurtlu and Others v. Cyprus and Turkey (no. 36925/07) and

Milisavljević v. Serbia (no. 50123/06);

a separate press release has also been issued for one decision, in the case of Muzamba Oyaw

v. Belgium (application no. 23707/15);

eight Committee judgments, concerning issues which have already been submitted to the Court, can

be consulted on Hudoc and do not appear in this press release.

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

Borojević and Others v. Croatia (application no. 70273/11)

The applicants are a family of Croatian nationals who live in Sisak (Croatia). The case concerned the

killing of their husband and father, Stevo Borojević, in October 1991 in the Sisak area during the

Croatian Homeland War³.

Immediately after Stevo Borojević’s body was found on the bank of a river, an inspection of the

crime scene was carried out. An autopsy was carried out the next day which showed that he had

been stabbed to death. Shortly afterwards an investigation was instigated against a person or

persons unknown and the victim’s wife was interviewed. She and her daughter were interviewed

again some years later, in 2002, as were a number of other witnesses, including family and

neighbours. They named potential suspects, but could not identify any perpetrators. This

investigation remains open.

Another investigation, opened some time later, resulted in the indictment and conviction in

December 2013 of the former deputy of the Sisak police for crimes carried out by the unit of which

he was in command between July 1991 and June 1992, namely the killings of persons of Serbian

origin, including the applicants’ relative. He was notably convicted for failing to undertake adequate

measures to prevent the killings and was ultimately sentenced to ten years’ imprisonment.

Relying in particular on Article 2 (right to life) of the European Convention on Human Rights, the

applicant family complained about the inadequacy of the investigation into their relative’s death as

none of the direct perpetrators had thus far been indicted, only those who had been in command.

They further alleged that their relative had been killed because of his Serbian ethnic origin.

No violation of Article 2

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

Inadmissibility and strike-out decisions are final.

The Croatian War of Independence from 1991 to 1995.

Lovrić v. Croatia (no. 38458/15)

The applicant, Zvonimir Lovrić, is a Croatian national who lives in Čaglin (Croatia). The case

concerned his expulsion from a hunting association and his inability to contest the decision in court.

A member of a hunting association based in Čaglin, Mr Lovrić had disciplinary proceedings brought

against him in 2012 for reporting another member of the association to the police. The association’s

executive board considered this a serious breach of his duties as a member. The executive board

then referred the matter for decision at a general meeting; at two separate sessions it was decided

to expel Mr Lovrić. No reasons were given at either session. Mr Lovrić attempted to contest the

decision to expel him before the judicial authorities, without success. His claim that the decision was

in breach of the association’s statute was dismissed by the courts – ultimately in 2014 by the

Supreme Court – as they found that the decision to expel a member concerned the association’s

internal affairs, which could not be reviewed by the courts.

Mr Lovrić complained that he had been completely deprived of access to court to contest the

decision to expel him from the hunting association, in breach of Article 6 § 1 of the European

Convention.

Violation of Article 6 § 1

Just satisfaction: The applicant did not submit a claim for just satisfaction.

Thuo v. Cyprus (no. 3869/07)

The applicant, David William Thuo, is a Kenyan national who was born in 1978 and lives in Nairobi

(Kenya). The case concerned his complaint about being ill-treated when deported from Cyprus to

Kenya as well as about the conditions of his detention pending his deportation.

In 2005 Mr Thuo served a sentence in Cyprus for attempting to travel to London from Larnaca

Airport on a forged passport. When released in November 2005, he was immediately re-arrested

and placed in immigration detention, in Nicosia Central Prisons, pending his deportation. He was

deported about 16 months later, on 9 March 2007, his application for asylum having been rejected.

Mr Thuo alleges that he was ill-treated throughout the deportation process. He submits in particular

that immigration officers beat him in Nicosia Central Prison before transporting him to the airport;

that he was then beaten and gagged at the airport by men in military uniform, assisted by

immigration officers, by them stuffing brown paper into his mouth, which they sealed with airline

tape and then secured with bandages wrapped around his head and neck; and, finally, that he

remained in this state until the aircraft was near Milan, the first leg of his journey back to Kenya.

Once in Kenya, Mr Thuo lodged complaints in December 2007 and February 2008 with the Cypriot

authorities, describing in detail the alleged ill-treatment and stating that he could identify three of

the officers who had ill-treated him. An official investigation was launched in July 2009 and

statements were taken from Mr Thuo and the accused police officers. Mr Thuo, who returned to

Cyprus for the investigation, repeated his allegations, and provided the authorities with a medical

certificate issued by a public hospital in Nairobi dated 9 June 2010 according to which he had visited

the hospital the day after his deportation and attesting to swelling and bruising to his face and

wrists. The accused officers, who denied any ill-treatment, submitted that – although they had not

recorded the incident – they had had to intervene at the airport and use bandages to stop Mr Thuo

from hurting himself. At the end of the investigation in July 2010, the authorities, accepting the

officers’ testimony that the use of force had been necessary, concluded that Mr Thuo had lied

and/or used various stratagems for financial gain or in order to stay in Cyprus. The Attorney General

subsequently endorsed these findings and, as a result, neither criminal nor disciplinary action has

ever been taken against the accused officers.

Relying on Article 3 (prohibition of inhuman or degrading treatment), Mr Thuo alleged that he had

been ill-treated during his deportation and that the related investigation had been ineffective. He

made a further allegation under Article 3, complaining about his conditions of detention pending

deportation for 16 months in an overcrowded police cell which had only been designed for short

periods of detention.

No violation of Article 3 – on account of alleged ill-treatment during the deportation process

Violation of Article 3 (investigation)

Violation of Article 3 (degrading treatment) – in respect of the conditions of detention from 14

November 2005 to 9 March 2007

Just satisfaction: The applicant did not submit a claim for just satisfaction.

V.K. v. Russia (no. 9139/08)

The applicant, V. K., is a Russian national who was born in 1946 and lives in Saint Petersburg (Russia).

The case concerned his involuntary placement in a psychiatric hospital.

On 3 April 2007 V. K., who has a history of mental illness, was admitted to a psychiatric hospital

without his consent. The grounds for his admission were repeated, groundless telephone calls to the

police and to the emergency medical services as well as threatening behaviour to ambulance staff.

The hospital diagnosed him with a mental disorder, and applied for a court order for his involuntary

placement. After a hearing on the case on 9 April 2007, the first-instance court, having heard the

doctors’ and prosecutor’s opinions as well as V.K.’s court-appointed lawyer – who considered

inpatient treatment to be reasonable, granted the application. V.K. appealed, complaining that his

lawyer had failed to represent him properly as she had maintained a conflicting position to his. The

appeal was summarily dismissed in August 2007. In the meantime, V.K. had been discharged from

hospital after his mental health improved.

Relying on Article 5 § 1 (e) (right to liberty and security), V.K. complained about his involuntary

admission to hospital, and in particular about ineffective legal representation during the related

court proceedings.

Violation of Article 5 § 1

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

Tek Gıda İş Sendikası v. Turkey (no. 35009/05)*

The applicant trade union, Tek Gıda İş Sendikası, based in Istanbul, was founded in 1955. At the

relevant time it represented employees working in the food processing industry.

The case concerned the judicial authorities’ refusal to recognise the trade union’s representation in

the Tukaş Gıda Sanayi ve Ticaret company and the dismissal of employees of the company who had

refused to cancel their membership of the trade union at their employer’s request.

In 2003 a number of employees in three factories belonging to the Tukaş Gıda Sanayi ve Ticaret

company joined the applicant trade union. In February 2004 that trade union asked the Ministry of

Labour and Social Security to establish its representation so that it could conclude, on behalf of its

members, collective labour agreements with the company in question. By decision of 26 May 2004

the Ministry acceded to that request and validated the trade union’s representation.

The Tukaş company lodged an application to set aside that decision with the 3^rdLabour Court of

İzmir. By judgment of 2 December 2004 the court, hearing and determining on the basis of an expert

report, acceded to that application on the grounds that the trade union had too few members to be

considered sufficiently representative. The trade union appealed to the Court of Cassation, which

dismissed its appeal on points of law on 22 March 2005.

Meanwhile, the Tukaş company had invited employees who were members of that trade union to

cancel their membership on pain of dismissal; forty employees refused and were dismissed on

redundancies or for professional shortcomings. On different dates the employees in question

appealed to the İzmir Labour Courts against their wrongful dismissal, demanding their reinstatement

in the company. By various judgments delivered between July and December 2004, the courts

ordered the Tukaş company to reinstate the employees whom it had dismissed, or else to pay them

compensation for wrongful dismissal. The Court of Cassation upheld those judgments. None of the

employees were reinstated. The Tukaş company paid them the compensation ordered by the courts.

Relying in particular on Article 11 (freedom of assembly and association), the applicant trade union

complained, first of all, about the domestic courts’ refusal to recognise its representation as a

precondition for collective bargaining within a company, which the union submitted had been a

result of an erroneous calculation of the number of union members on the staff of Tukaş, and

secondly, about the fact that the relevant legislation and the courts had not prevented the company

from eradicating trade unions from its workplaces by means of wrongful dismissals.

No violation of Article 11 – concerning the refusal to recognise the applicant trade union’s

representation

Violation of Article 11 – on account of the fact that the State had failed to fulfil its positive

obligation to prevent the employer from dismissing all the employees who were members of the

applicant trade union by means of wrongful dismissals

Just satisfaction: EUR 10,000 (non-pecuniary damage) and EUR 8,500 (costs and expenses)

Yaşar Holding A.Ş. v. Turkey (no. 48642/07)*

The applicant company, Yaşar Holding A.Ş., is a limited liability company established under Turkish

law. At the relevant time it was the majority shareholder in Türkiye Tütüncüler Bankası Yaşarbank

A.Ş. (“Yaşarbank”), a private bank founded in 1924.

The case concerned the transfer of management of Yaşarbank to the Deposit Guarantee Fund and

the transfer of the bank’s shares to that Fund.

Between 1994 and 1999, Yaşarbank was audited several times; the ensuing reports mentioned its

financial difficulties and recommended a series of measures to improve and consolidate its situation.

On 13 December 1999 an auditor submitted a report on the situation of Yaşarbank at 30 September

1999, noting that continuing its banking activities would present a risk to the rights and interest of

investors and savers and to the reliability and stability of the financial system; she considered that

the bank’s financial situation could no longer be consolidated.

On 21 December 1999 the Council of Ministers decided to transfer the management of Yaşarbank

and all its share options to the Guarantee Fund (apart from dividends). It further ordered the

transfer of ownership of the shares to the Fund. On the date of the transfer 48.48 % of overall shares

in Yaşarbank were held by the applicant company.

On 4 February 2000 Yaşarbank’s shareholding companies, including the applicant company, applied

to the Council of State to set aside the Council of Ministers’ decision on the grounds that transferring

ownership of the shares to the Fund, without valuable consideration, infringed their ownership

rights. On 27 February 2002 the Council of State dismissed that application, finding that the bank

had first of all been placed under close supervision on account of the serious decline in its financial

situation, but that it had not properly implemented the measures indicated in the various audit

reports and that its deficit had increased exponentially before its transfer to the Fund. The Plenary

Administrative Divisions of the Council of State upheld that judgment on 29 April 2004.

Relying in particular on Article 1 of Protocol No. 1 (protection of property), the applicant company

complained about the transfer of management of Yaşarbank and of its shares to the Guarantee

Fund.

Violation of Article 1 of Protocol No. 1

Just satisfaction: The Court held that the question of the application of Article 41 (just satisfaction)

of the Convention was not ready for decision and reserved it for examination at a later date.

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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.