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Home arrow newsitems arrow ECHR: Time Deadlines may Violate Human Rights by not examining particular circumstances

ECHR: Time Deadlines may Violate Human Rights by not examining particular circumstances

Written by ACM
Tuesday, 30 October 2018
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*Strasbourg/Angelo Marcopolo/- Forcing strict and absolute Time Deadlines may Violate Human Rights, if it doesn't take into account the Particular Circumstances of each affair, where the cause of a Delay could be a very Serious Issue, judged, in substance, ECHR in a Ruling published Today, on a case which might be linked even with possible, Long-Time Attempts to Steal Oil from NATO's installations in Turkey, (See Facts Infra : "Kursun").


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The Applicant was an Owner of a Property used as Industrial Park, located near to a Private Oil Refinery ("Tupras"), as well as to some Oil Storage and Supply facilities, run by the Ministry of Defence, for the Turkish NATO Pipeline system ("ANT").


A Big Explosion (equivalent to an Earthquake with Magnitude of 9 on Richter scale !) at those Neighbouring Areas, and ensuing Fire, Killed 2 Persons and Injured Many others, while also Damaging nearby Properties.


Several Commissions were established in order to determine the Cause of that Explosion, and the Damage caused by it.


Contrary to Initial estimations pointing at the Private Refinery, subsequent analysis found that the Cause was related to the NATO Pipeline system in Turkey, because of a large and long Leakage, mainly of Oil, (given the Fact that Both the precise Product leaked ["Gasoline"], and its Location in the UnderGround, etc., concerned the "ANT" system of Turkish NATO Pipelines, under which, a very Old Leak appeared Continuing during Decades, in a Network established since 1960/1970+)...


Curiously, such a "Ping-Pong" on the Question : -"Who was Responsible ?", persisted also longer in Turkey, and, moreover, a Decision to "Clean" up that Dangerous Leak, wasN't implemented, not even 12 Years After that Deadly Explosion (2005-2017) !


>>> Later-on, a Team of Experts reportedly Found that Leaks might result from "Breaches" of Pipelines or other equipments "by Malicious individuals, for the purpose of Theft" (sic). Indeed, that Leak "involved a Highly Valuable Economic Commodity"...


=> Therefore, Turkish "Institutions" could "Not be expected to UnCover such Incidents, by their own efforts alone", and it's "highly ImProbable that Institutions would Not take Any Action to Stop such a Leak", ECHR noted.


* In other words, to put it in a nutshell, Thieves may have been Stealing NATO's Oil, under its installations in Turkey, during Decades, with Complicities from Turkish Authorities !


Perhaps that's a reason for which, Turkey's Cour de Cassation, curiously Claimed, afterwads, in this affair, that "it was Not Necessary to have the TortFeasor established with Certainty", but, on the Contrary, "a Guess" on his "Identity", within the bounds of a "Possibility", was "Sufficient to Bring an Action" via the Prosecutor, (etc), so that a Proprietor's  Application, which aWaited for such matters to be Clarified, should be Rejected as Out of Time, ECHR's Judgement points out.


Indeed, that private Owner prefered to Wait until such thorny Matters (as Cause and Damages : Comp. Supra) are further Clarified, with the Result, for his Application, to Delay More than a Year of "Time Limit" in such  cases. Thereby, it gave a Legal Pretext, for Turkish Courts, to Reject it...


>>> But, on the Contrary, ECHR's Judgement, published Today, points at the Need of an "Exact and Certain Information" about the "Identity of the TortFeasor", and Not "mere Suspicions and Guesses", in order to "Trigger" the Time-Limit for an Application to the Courts.


- In this regard, "the Applicant Complained that he had been Denied a Fair Trial, on account of the Dismissal of his Compensation Claim, as being Out of Time", ECHR observed. Indeed, "although Time-Limits are in principle legitimate procedural limitations on access to a court, their interpretation in Disregard of relevant Practical Circumstances, may result in Violations" of Human Rights, ECHR confirmed.

F.ex., in this case, "having regard to the nature of the Explosion, the Uncertainty of the Cause of the damage, the Complexity of the matter, as well as the Various Reports on the issue, the Court finds it Difficult to follow" the Turkish Courts, which "required" from the Applicant "to Institute Proceedings at a Moment when he could Not, realistically, have Sufficient Knowledge of the Cause of the Damage, or the Identity of those Responsible" ; I.e. something "very Formalistic", bearing in mind "particularly the possible Practical and Financial Implications, of such a Requirement, for the applicant".


>>> "Furthermore, the Court notes that the Appliqant Raised pertinent Questions, that Called for a Response", the Judgement stresses. (F.ex. about the still Remaining Risk for even More Explosions, since that Leakage had Not yet been Cleaned up : Comp. Supra ; and on the Identity of those Responsible for that Deadly Explosion, etc). Indeed, "his Attempts to Clarify those Important Matters, ...went to the very Core of his Right of Access to Court", and, in Consequence, "canNot be used Against him, in assessing ... the Time-LImit", ECHR found.


=> Thus, EuroJudges concluded that "there has been a Violation of the Applicant's Right of Access to a Court, under article 6§1 of the (PanEuropean) Convention (on Human Rights)", and awarded to the Victim 2.500 € for Non-Pecunuary Damage, as well as 3.000 € for the Costs, wityOut "Speculating" about "the Outcome of Proceedings", at the National Courts, "as regards Pecuniary Damage", in addition.  


In this regard, ECHR noted, indeed, the "Deprivation of Rental Income", the "Reduced Value of Property", and the "Risk of Further Explosions", since "necessary steps had Not yet been taken to clean the Oil Leak", as the applicant had Denounced, (Comp. Supra).

 

(../..)


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    The recent paradox of freezing EU Talks with front-runner Croatia, while continuing controversial EU - Turkey talks, despite Zagreb's acceptance of Refugees' Human Rights to return, that Ankara refuses fex. in Cyprus, while both have "Good Neighborhood" problems vis a vis Slovenia, or Greece, Cyprus and Armenia respectively, can it be justified by the non-fullfilment of EU criteria, as Slovenia says, or, is it "Double Standards" ?    

The question became unavoidable after statements by Presidents of Slovenia and Croatia, Tuerk and Mesic, respectively, to "EuroFora", exclusively or among Strasbourg's journalists this week at the CoE, on the sidelines of its 2009 Summer University for Political Schools, which topically brought them together as successive key-note speakers.


    Comming only a few Months before EU checks Turkey's compliance to its commitments on Cyprus, etc., scheduled for December 2009, this obviously has a special importance for the coherence of EU Enlargement's principles.

     Suspension of EU Negotiations is a normal consequence in case of a Candidate Country's failure to fullfil EU Conditions, such as "Good Neighborhood relations", stressed at first Slovenian President Danilo Tuerk, current CoE's chair.

    But, regarding EU's Criteria,  there shouldn't be any "Double Standards",  reacted Croatian President Stjepan Mesic, commenting the fact that Turkey's controversial EU negotiations continue, while they were recently "freezed" in the case of Croatia, an "unquestionably European Country", which oficially accepts to respect Refugees Human Rights, contrary to Ankara's notorious refusals or reluctance.                                       

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                                                                                                                                                                                                                                                                                                                                                           - "EU itself has set as a Criterium (for EU Enlargement) the "Good Neighborhood relations",  and their absence justifies the "Suspension" EU Negotiations, (f.ex. with Croatia), because of a Border dispute affecting the territorial integrity of an EU Member Country, stressed Slovenian President, Danilo Tuerk, CoE's Chairman in office (May - November 2009), speaking to Journalists in Strasbourg including "EuroFora".    

Questioned earlier what "consequences on EU's Enlargement policy" can have the "Ban on EU Membership Negotiations", imposed to Croatia, Tuerk replied that "this question comes down to the fulfillement of (EU) Criteria for membership. One has to look at each Candidate Country ., from the point of view whether it fullfils the Criteria that EU has set. One of them are Good Neighborhood Relations, I'd like to remind. And also, there are other factors, such as Justice, Home affairs, Rule of Law, and others".


    - "Now, ..Candidate Countries are at Different Levels of fulfillement of Criteria", he observed.

    - " Croatia is obviously the closest to that. I'm rather optimistic : I think that in the coming Months we'll have an opportunity to look at all these issues constructively and hopefully we'll be able to make progress". "My main concern, at this point, is the situation in Bosnia : We haven't seen enough progres domesticaly. We haven't seen enough during ..political parties within their country.We need a New Energy, a new energetic move towards the Candidature for EU membership. "Other (Western Balkan) Countries (Serbia, Montenegro, FYROM, Albania) have been making soaring Progress, and I think that they should be ready, in a few Years, for the Candidate status".

    - "As far as the Western Balkans are concerned, .. nobody should be left outside" the EU, Slovenian's President concluded, ommitting to mention Turkey's controversial EU bid.

    - "This process may be seen as Slow, but..  Slovenia has also has also been exposed to various "Booms of Slowness" in our accession period. But now we can say that the process was relatively quick, because changes which occur after becoming EU member, are quite large, and they require proper Preparations before the (EU) membership becomes a new factor, an impacting line for a new (EU) member country".
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EU "Solidarity" ?
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Slovenian statements made some participants from certain 3rd Countries as FYROM, etc. claim that "the Principle of EU Solidarity" would "produce a.. rising European Union Nationalism (sic !), against Non-EU Countries", as they said, asking unhappy foreign countries to form a "bloc" to exert pressure on the EU...    

But Croatian President Stjepan Mesic dismissed that, supporting "EU Integration", "after the Economy also in Political" issues, as "the achievement" of our times. In EU there is "diversity, but it's United", he stressed, "EU has to be United so that it can become a central factor of Peace" also at the surrounding areas, he replied.

croatian_president_mesic_ 

Speaking later exclusively to "EuroFora", the experienced twice President of Croatia, former President of the International "Non-Aligned" movement, denounced "Double Standards" in the way EU treats recently Croatia compared to Turkey :   

 - "I think that there shouldn't be Double Standards", stressed the Croatian President, in reply to a Question comparing the freeze of EU - Croatia talks, with the continuation of EU - Turkey talks, despite the fact that Croatia is an "unquestionably European country", while Turkey's EU bid is notoriously controversial.


    Mesic was reacting to the observation that, even if he confirmed his "respect of Refugees' Human Rights to return, etc. (See infra), nevertheless, EU talks are suspended with Croatia.. While for oher, controversial candidates, who refuse to respect Refugees' Rights to return, etc., as fex. Turkey does in occupied Cyprus and elsewhere, EU negotiations continue".

    - "I believe that Croatia's accession will confirm that all European Countries who fulfill all of the Conditions and achieve European Standards, have to join the EU. There shouldn't be any Double Standards", went on to add in reply President Mesic.

    In this relation, Croatia's President found "of paramount importance", CoE's "mechanisms enforcing ECHR's judgements"
    
    - "On Refugees and Displaced persons, the process will be completed only after the last person demanding to return will be allowed to do so !", President Mesic Croatia stressed earlier, setting a general standard of obvious importance also for otherr candidates, as f.ex. Turkey, often accused to exclude or heavily restrict Greek Cypriot Displaced persons' return to their Family Homes and ancestral land, provoke difficulties to Turkish-Kurd IDPs return to their home regions at the South-East, etc.

    Some "2.000 People are still reported Missing" in former Yugoslavia, for some Years, (as in Cyprus, modern Europe's oldest case, for 3 Decades. Nagorno-Karabach, Tcecnya in Russia, etc, more recently), and Investigations "will only be completed after establishing the fate of the last one of them", he added.
    
    Speaking earlier on "War Crimes", President Mesic stressed that "Leaders are responsible for (the) Wars (of the Past), not the People", and called against Impunity :  "Individuals have to be held Responsible for Crimes. International Penal Tribunals have to persecute those individuals", perpetrators of War Crimes, he underlined.

    Such statements naturally made Mesic rather popular at ECHR, whose President, French EuroJudge, Professor Jean-Paul Costa, looked particularly smiling when he welcomed him later on Wednesday afternoon, after Slovenian President Daniko Tuerk earlier this week.
           

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