The Jurisprudence of the European Court of Human Rights

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  • 1 Researcher at the European Academy of Bolzano, Minorities and Autonomies, Law Degree, LL.M. (University of Essex); currently doctoral candidate in Law (University of Graz).

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  • 1 Protocol No. 12 to the Convention will provide a right to non-discrimination separate from the other substantive articles of the Convention. At the time of writing it has been ratified by four States: Croatia, Cyprus, Georgia and, on 25 April 2003, San Marino. 2 ECtHR, Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI. The case concerns a com- plaint lodged by a Cvpriot national against Turkey in regard to the impossibility of her occupying the house she owned in the section of Cyprus under Turkish control.

  • 3 ECtHR, Appl. 25781/94, Cyprus v.Turkey, (Grand Chamber), judgment of 10 May 2001. 4 Council of Europe, Reply adopted by the Committee of Ministers on 26 March 2003 at the 833rd meet- ing of the Ministers' Deputies, Implementation of decisions of the European Court of Human Rights by Turkey, Parliamentary Assembly Recommendation 1576 (2002), CM/AS(2003)Rec. 1576 final, 31 March 2003. 5 ECtHR, Appl. 38187/9, Ilkay Adali v. Turkey, decision on the admissibility of 31 January 2002.

  • 6 ECtHR, Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI. 7 ECtHR, Appl. 25781/9-t, Cyprus. v.Turkey, (Grand Chamber), judgment of 10 May 2001. 8 At the time of writing no judgment has yet been dehvered. 9 ECtHR, Appl. 20652/92, Djavittln v. Turkey, (Chamber), judgment of 20 February 2003. 10 Ibid, 3, para.14.

  • 11 ECommHR, App1.18270/91,Ahmet Cavitlln and Others v. Cyprus, decision on the admissibility of 8 Octo- ber 1991. 12 Ibid. 13 Ibid. 14 The ad hoc Turkish judge, Feyyz Golcuklu, expressed a dissenting opinion in which he stated that the present case was basically about freedom of movement, noting that 'in public international law there is no general right to cross a State border or demarcation line to gain access to this or that property or to meet associates or friends in the name of freedom of association.' 15 ECtHR, Appl. 69949/01, Ibrahim Aziz v. Cyprus, Greece, Turkey and the United Kingdom, partial decision as to the admissibility of 23 April 2002.

  • 16 Article 63 of the Cypriot Constitution provides :'...every citizen of the Republic who has attained the age of twenty-one years, and has such residential qualifications as may be prescribed by the Electoral Law, shall have the right to be registered as an elector in either the Greek or the Turkish electoral list provided that the members of the Greek Community shall only be registered in the Greek electoral list and the members of the Turkish Community shall only be registered in the Turkish electoral list.' 17 At the time of writing no decision as to the admissibility of this case had yet been taken by the Court.

  • 18 ECtHR, Appl. 48787/99,Ilascu and Others v. Moldova and Russia, (Grand Chamber), decision on the admis- sibility of 4 July 2001. 19 Georg Ress (German), Sir Nicolas Bratza (British), Josep Casadevall (Andorran) and Egil Levits (Lat- vian). 20 At the time of writing no judgment has yet been delivered. 21 ECtHR, Appl. 36378/02, Sbamayev and 12 Others v. Georgia and Russia. At the time of writing no deci- sion on the admissibility had yet been delivered. For further reference, see Alessia Sonaglioni, 'The War in Chechnya and Actions Taken by the Council of Europe' in this volume. 22 Rule 39 of the Rules of Court.

  • 23 At the time of writing no decision on the admissibility had yet been delivered. 24 ECtHR, Appl. 57942/00, Khasbiyev v. Russia; Appl. 57945/00, Akayeva v. Russia; Appl. 57947/00, Isayeva v. Russia; Appl. 57948/00, Yusupova v. Russia; Appl. 57949/00, Bazayeva v. Russia; Appl. 57950/00, Isayeva v. Russia, decisions on the admissibility of 19 December 2002. 25 At the time of writing no judgment has yet been delivered.

  • 26 ECtHR, United Communist Party ofTurkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998- I ; ECtHR, Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III; ECtHR, Free- dom and Democracy Party (6ZDEP) v. Turkey, (Grand Chamber), judgment of 8 December 1999, Reports 1999-VIII; ECtHR, Freedom and Democracy Party (6ZDEP) v. Turkey, (Grand Chamber), judgment of 8 December 1999, Reports 1999-VIII; ECtHR, Appl. 22723/93, 22734/93 and 22725/93, Yazar, Karatas, Aksoy and the Peoples Labour Party (HEP) v. Turkey,judgment of 9 April 2002; ECtHR, Appl. 22723/93, 22734/93 and 22725/93, Yazar, Karatas, Aksoy and the People's Labour Party (HEP) v. Turkey, judgment of 9 April 2002. 27 ECtHR, Appl. 24144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, Sadak and Others v. Turkey, judg- ment of 11 June 2002.

  • 28 ECtHR, Appl. 29900/96, 29901/96, 29902/96 and 29903/96, Sadak, Zana, Dicle and Dogan v. Turkey, judg- ment of 17 July 2001. 29 ECtHR, Appl. 24144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, Sadak and Others v. Turkey, judg- ment of 11 June 2002. 30 Council of Europe, Reply adopted by the Committee of Ministers on 26 March 2003 at the 833rd meeting of the Ministers' Deputies, Implementation of decisions of the ECtHR by Turkey Parliamentary Assembly Recommendation 1576 (2002), CM/AS(2003) Rec. 1576 final, 31 March 2003. 31 ECtHR, Appl. 25141/94, Dicle for the Democracy Party (DEP) v. Turkey, judgment of 10 December 2002. At the time of writing the judgment was available in French only.

  • 32 Ibid.,12-13, paras. 39-40. 33 Ibid., 15, para. 53. 34 Ibid., 17, para. 64. 35 Ibid., 19, para. 78.

  • 36 ECtHR,Appl.25141194,DiclefortheDemocracv Party (DEP) v. Turkey, judgment of 10 December 2002. 37 ECtHR, Appl. 41340/98, 41342/98, 41343/98 and 41344/98, Refah Partisi (the welfare Party) and others v. Turkey, judgment of 31 July 2001. 38 ECtHR, United Communist Party ofTurkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998- I ; ECtHR, Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III; ECtHR, Free- dom and Democracy Party (OZDEP) v. Turkey, (Grand Chamber), judgment of 8 December 1999, Reports 1999-VIII; ECtHR, Appl. 22723/93, 22734/93 and 22725/93,Yazar, Karatas, Aksoy and the PeopleS Labour Party (hEP) v. Turkey, judgment of 9 April 2002. 39 For further reference, see the article by the same author 'The Jurisprudence of the European Court of Human Rights', EYMI (2001/2), 488-534. 40 ECtHR, Appl. 41340/98, 41342/98, 41343/98 and 41344/98, Refah Partui (the Welfare Party) and Others v. Turkey, judgment of 31 July 2001, 21, para52. 41 Article -13 (1)(2) ECHR provides: 'Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance.'

  • 42 ECtHR, Appl. 41340/98, 41342/98, 41343/98 and 41344/98, Refah Partisi (the Welfare Party) and others v. Turkey, (Grand Chamber), judgment of 13 February 2003. 43 Ibid, 25, para 75. 44 Ibid., 31, para. 96. 45 Ibid, 31-32,paras.98-9.

  • 46 Ibid,38-40, paras.120-5. 47 Ibid., 41, para.128.

  • 48 ECtHR, Appl. Nos. 41340/98, 41342/98, 41343/98 and 41344/98, Refah Partisi (the Welfare Party) and others v. Turkey, (Grand Chamber), judgment of 13 February 2003. 49 ECtHR, Appl. 46221/99, Ocalan v. Turkey, (Chamber), judgment of 13 March 2003. 50 Rule 39 of the Rules of Court (Interim Measures).

  • 51 With regard to Mr. Ocalan's detention, the Court found a violation of Article 5 (3) (the right to be brought promptly before a judge) given the failure to bring the applicant before a judge promptly after his arrest and a violation of Article 5 (4) (the right to have lawfulness of detention decided speedily by a court) given the lack of a remedy by which the applicant could have the lawfulness of his detention in police custody decided. As for the proceedings before the Ankara State Security Court, in which was initially presided over by a military judge, the Court held that that court was not an independent and impartial tribunal within the meaning of Article 6 (1). Consequently, the Court found that there was a violation of that provision alone and taken together with Article 6 (3) (b) (the right to adequate time and facilities for preparation of defence) and (c) (the right to legal assistance), in that the applicant did not have a fair trial.

  • 52 The Court awarded the applicant a total of 100,000 EUR with respect to the claims made by his legal representatives. 53 ECommHR, Appl. 25758/94, decision of 7 March 96, D.R. 96. 54 ECtHR, Appl. 44158/98, Gorxelik and Others v. Poland, (Chamber) judgment of 20 December 2001.

  • 55 ECtHR, Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV; ECtHR, Appl. 26662/95,Yarey v. the United Kingdam, judgment (friendly settlement) of 21 December 2000; ECtHR, Appl. 27238/95, Cbapman v. the United Kingdom; Appl.4882/94, Beard u the United Kingdom,; Appl.24876/94, Coster v. the United Kingdam; Appl. 25289/94, Lee v. the United Kingdom; Appl. 25154/94, Jane Smith v. the United Kingdom, judgments of 18 January 2001. 56 ECtHR, Appl. 38361197,Anguelova u Bulgaria, judgment of 13 June 2002. 57 ECtHR, AppL 50963/99,AI-Nashif 'L'. Bulgaria, judgment of 20 June 2002. 58 The applicant submitted that despite the fact that he was born in Kuwait and that his mother is a Syrian citizen, he could not acquire Kuwaiti or Syrian nationality because in both countries only offspring of male nationals of those states may obtain citizenship.

  • 59 ECtHR, Appl. 50963/99, Al-Nasb�(v. Bulgaria, judgment of 20 June 2002, 8, para. 39. 60 Ibid., 23, para.111.

  • 61 ECtHR, Cbabal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V. 62 ECtHR, Appl. 44179/98, Murphy v. Ireland, decision on the admissibility of 9 July 2002. 63 Ibid , 3.

  • 64 ECtHR, Appl. 42393/98, Lucia Dablab v. Smitzerland, decision on the admissibility of 15 February 2001. 65 ECtHR, Appl. 41556/98, Tekin v. Turkey, decision on the admissibility of 2 July 2002. 66 ECtHR, Appl. 44774/98, Sabin v. Turkey, decision on the admissibility of 2 July 2002. 67 ECtHR, Appl. 24265/94, Devenney v. the United Kingdom, judgment of 19 March 2002.

  • 68 See also ECtHR, Tinnelly � sons LTD and Others and McEldu$and Others v. the United Kingdom, judgment of 10 July 1998, Reports 1998, concerning discrimination against Catholics in Northern Ireland in the award of public works contracts. 69 ECtHR, Appl. 47293/99, Selim v. Cyprus, judgment (friendly settlement) of 16 July 2002. 70 ECtHR, Appl. 47293/99, Selim v. Cyprus, decision on the admissibility of 18 September 2001. 71 Ibid , 12-3. 72 ECtHR, Appl. 69949/01, Aziz v. Cyprus, Greece, Turkey and the United Kingdom. For further details on this case, see above 'Effective Participation in Public Life'in this article.

  • 73 The government offered to pay Mr. Selim the sums of 5,080 Cyprus pounds as just satisfaction and 3,000 Cyprus pounds plus VAT for legal costs. 74 The new Law 46(I)/2002, entitled Application of the Civil Marriage Law 2002 to Members of the Turkish Community (Temporary Provisions Law 2002)', provides for the temporarily application of the Marriage Law to members of the Turkish Community. According to the government,' there is to be temporarily and so long as the abnormal situation prevailing in the island continues, a suspension of legislative arrangements envisaged under the Turkish Family Law (Marriage and Divorce) Law Cap. 339 and the Turkish Commu- nal Courts Law of 1960 which at present apply to the celebration of civil marriage of Cypriots of Turkish origin.' ECtHR, Appl. 47293/99, Selim v.Cyprus, judgment (Friendly settlement) of 16 July 2002, 3, para 12. 75 ECommHR, AppI. 8142/78, X v. flustria, D.R.18, 88. 76 ECommHR, Appl. 9099/80, X v. flustria, D.R.27, 209. 77 See among others, ECommHR, X and Yv. Belgium, decision of 7 October 1966; K. v. France, decision of 7 December 1983, D.R. 35, 207; ECommHR, Bideault v. France, decision of 6 October 1986, D.R.48, 235-6.

  • 78 ECtHR, Appl. 26891/95, Legerblom v. Sweden, judgment of 14 January 2003. 79 Ibid ,10, para. 54.

  • 80 ECtHR, Case Relating to Certain Aspects ofthe Laws on the Use ofLanguages in Education in Belgium (Merits), judgment of 23 July 1968, Series A, No. 6. 81 ECtHR, Appl. 25781/94, Cyprus v. Turkey, judgment of 10 May 2001. 82 Committee of Ministers, DH meeting of 3-4 December 2002. 83 ECtHR, Appl. 25781/94, Cyprus v. Turkey, judgment of 10 May 2001, paras 275-80.

  • 84 ECtHR, Appl. 48321/99, Slivenko and Others v. Latvia, (Grand Chamber), decision on the admissibility of 23 January 2002. For further reference, see by the same author 'The Jurisprudence of the European Court of Human Rights', EYMI (2001/2), 487-534. 85 ECtHR, Appl. 60654/00, Sisojeva and Others v. Latria, decision on the admissibility of 28 February 2002.

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