issued by the Registrar of the Court

ECHR 392 (2018)

20.11.2018

Judgments of 20 November 2018

The European Court of Human Rights has today notified in writing 10 judgments¹:

five Chamber judgments are summarised below; separate press releases have been issued for three

other Chamber judgment in the cases of Ognevenko v. Russia (application no. 44873/09), Toranzo

Gomez v. Spain (no. 26922/14) and Selahattin Demirtaş c. Turquie (no. 2) (no. 14305/17);

five 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 below are available only in English.

Pulfer v. Albania (application no. 31959/13)

The applicant, Violeta Pulfer, is an Albanian national who was born in 1967 and lives in Tirana,

Albania.

The case concerned the Albanian authorities’ handling of domestic accusations made by the

applicant, in which she alleged that the man from whom she bought her house, S.N., subsequently

assaulted her and made illegal attempts to evict her from that house.

In December 2011, Ms Pulfer and her husband moved into a house in the city of Vlora that she had

recently bought from S.N. The house had been built unlawfully but its status was subsequently

regularised. In January 2012, S.N. attempted to evict Ms Pulfer from the property. Later that same

year, in September, he made a second attempt to evict her, allegedly strangling her with a rope and

dragging her around the room and into the walls. Two days later, it appeared that Ms Pulfer had

gone to stay at her mother’s home in Tirana.

In May 2012, S.N. was charged with the crime of self-administered justice. This charge was dropped

in December, in line with Albania’s General Amnesty Act, passed the previous month, which

prevents the criminal prosecution of offences committed prior to 30 September 2012 and incurring a

sentence of fewer than two years.

Following Ms Pulfer’s alleged assault in September 2012 the prosecutor ordered a medical exam

which found visible marks on her neck resulting from strangulation and haematoma on her head

from the impact of a hard object. She was declared unfit to work for nine days. Several days later, a

second investigation was opened against S.N., who was charged with inflicting bodily harm. This was

subsequently combined with a third investigation, instigated the following month in October 2012,

into alleged malicious use of telephone calls, following Ms Pulfer’s making a variety of serious

accusations against S.N. In February 2013 this joint investigation was discontinued, in light once

again of the General Amnesty Act. The Supreme Court upheld this decision in July 2016, following

two appeals made by the applicant. Two further investigations launched following action taken by

Ms Pulfer were discontinued.

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

The applicant argued in particular that the authorities, in their treatment of her allegations of

assault, had failed in their obligation to protect her. The Court examined these complaints under

Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human

Rights.

Violation of Article 3

Just satisfaction: Ms Pulfer did not make any claim in this respect.

Samesov v. Russia (no. 57269/14)

The applicant, Aleksandr Samesov, was born in 1987 and lived in St Petersburg before his arrest.

The case concerned his complaint of police ill-treatment and the lack of an effective investigation.

In June 2013 the authorities began criminal proceedings into fraud allegedly committed by the

applicant and the following month he was arrested by masked police officers near his car on a street

in St Petersburg. The police carried out various investigative measures, such as searching his car and

apartment, the same day. Mr Samesov states that from the time he was taken to police custody on 4

July until 5 July 2013 the police officers subjected him to ill-treatment in order to force him to

confess to crimes. In particular, he was allegedly punched and kicked in the head and abdomen,

nearly suffocated by having a plastic bag placed over his head, struck several times on the torso,

kicked in the left kidney and threatened with a gun. According to Mr Samesov, the officers also

refused to contact his family and lawyer.

On 5 July 2013 police officers took Mr Samesov to a hospital in St Petersburg where the injuries on

him were recorded. According to the medical records, Mr Samesov was admitted as an emergency

case and had inpatient treatment for four days. He was diagnosed with a contusion on the left

kidney. He also had abrasions and bruising on his abdomen, chest and arms.

The District Court held a hearing in the presence of Mr Samesov and his lawyer on 5 July and

remanded the applicant in custody. In August 2013 Mr Samesov lodged a formal complaint

concerning his alleged ill-treatment with the St Petersburg Investigative Committee. In September

2013 an investigator ordered a forensic medical examination of the applicant’s medical documents,

stating that he was in custody and could not appear for the examination in person. The investigator

ultimately refused to initiate criminal proceedings, stating that the applicant’s allegations of police

ill-treatment were contradictory, evidencing his attempts to avoid criminal liability and provide false

information to the investigating authorities.

The applicant challenged investigators’ refusals five times. Four of the refusals were overruled but in

May 2016 the District Court finally dismissed Mr Samesov’s complaint in full. His appeal was

rejected.

Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant complained that

he had been subjected to ill-treatment by police officers and that the State had failed to conduct an

effective investigation into the matter.

Violation of Article 3 (investigation)

Violation of Article 3 (inhuman and degrading treatment)

Just satisfaction: 20,000 euros (EUR) (non-pecuniary damage) and EUR 1,944 (costs and expenses)

Asma v. Turkey (no. 47933/09)*

The applicant, Mehmet Asma, is a Turkish national who was born in 1957 and lives in Istanbul

(Turkey).

The case concerned the death of Mr Asma’s daughter at the age of 15, in an accidental fire.

In October 2000 fire broke out following work being conducted, without a permit, on land adjoining

the building inhabited by the Asma family, with high-voltage power lines passing nearby. Three

persons died, including Mr Asma’s daughter. On the day of the incident the public prosecutor’s

office instigated a criminal investigation. An expert assessment drawn up in 2001 showed that the

fire had been caused by the works: an excavator had snagged a telephone line, dragging it into

contact with a cable laid too close to the building, which had sent an electrical discharge up to the

floor where the deceased girl lived. In 2005 another expert assessment engaged in particular the

responsibilities of the driver of the excavator, the contractor and Eyüp municipality (Istanbul).

In November 2002 the public prosecutor’s office requested the authorisation of the Ministry of the

Interior, pursuant to the Law on the prosecution of civil servants and other officials, to initiate

investigations against the Mayor of Eyüp municipality and the municipal director of urban planning.

That request was rejected by the Ministry on the grounds that the persons concerned had been

unable to ascertain the unlawfulness of the works before the accident had occurred. In July 2006 the

proceedings against the other defendants became time-barred.

In December 2003 the Regional Court granted the action for damages filed by the Asma family,

ordering, inter alia, the person responsible for the impugned works, the owner of the excavator and

the Turkish electricity transmission company (TEİAŞ) to pay the family damages. The action for

compensation filed against the municipality is still pending before the Council of State.

Relying on Article 2 (right to life), Mr Asma complained of his daughter’s death, considering that the

fire had resulted from negligence attributable to third parties as well as to the authorities. He also

alleged that the criminal proceedings conducted in this case had been ineffective.

Violation of Article 2 (investigation)

No violation of Article 2 (right to life)

Just satisfaction: The Court held that the finding of a violation constituted sufficient just satisfaction

for any non-pecuniary damage suffered by Mr Asma.

Erduran and Em Export Dış Tic A.Ş. v. Turkey (nos. 25707/05 and 28614/06)

The applicants are Mehmet Erduran, a Turkish national born in 1941 and living in Istanbul, and Em

Export Dış Tic. A.Ş., a company registered in Turkey. Mr Erduran is Em Export Dış Tic. A.Ş.’s president.

The case concerned a tax audit of the applicant company, including the search and seizure of

documents, which resulted in large income tax payments and penalties.

In 2000 the applicant company was paid 1.6 trillion Turkish liras (about 2.9 billion euros at the time)

by a state-owned company, the Iron and Steel Company, in settlement of a contractual dispute.

The authorities began a tax inspection of the applicant company, which lasted from August 2000 to

May 2002. During the audit tax inspectors seized and sealed various company documents under a

court order. The tax assessment found book-keeping and tax payment irregularities by the applicant

company, particularly as regards the amount of money it had received from the Iron and Steel

Company. Some documents on transactions by its partners were missing and the company had not

declared profits from foreign currency investments.

The Tax Office ordered the company to pay large sums in tax and penalties for 2000 and 2001. The

applicant company went to court, winning a reduction in the tax for 2001 and an annulment of the

provisional income tax for 2000. The courts upheld the penalty payments and either rejected or did

not take up the company’s arguments that the search and audit had been unlawful. In 2004 and

2005 the applicant company made several payments to the Tax Office in respect of 2000 and 2001.

Relying in particular on Article 8 (right to respect for private life, the home and correspondence), the

applicants complained about the search and seizure at their business premises.

No violation of Article 8

Günana and Others v. Turkey (nos. 70934/10, 6560/11, 23599/12, 39367/12,

and 66687/12)*

The applicants, Turan Günana, Musa Kaya and Halil Gündoǧan, are Turkish nationals who were born

in 1981, 1973 and 1960 respectively. At the relevant time they were in various prisons in Turkey.

The case concerned the seizure by the prison authorities of handwritten documents belonging to the

applicants on the grounds, in particular, that they contained information relating to a terrorist

organisation. The applicants’ appeals were dismissed by the domestic courts.

Relying on Article 10 (freedom of expression), the applicants complained of a breach of their

freedom of expression. Relying on Article 6 (right to a fair trial), Mr Günana also complained of a

violation of his right to a fair trial.

Violation of Article 10 – in respect of the three applicants

Violation of Article 6 § 1 – in respect of Mr Günana (application no. 70934/10)

Just satisfaction: EUR 2,000 to Mr Günana and EUR 1,500 to Mr Kaya in respect of non-pecuniary

damage. Mr Gündoǧan did not make any claim in respect of just satisfaction within the time

allocated.

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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.