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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

Автор 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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Swedish Foreign Minister, Carl Bildt, speaking  to "EuroFora", denied rumors on Turkey's attempts to avoid an EU check of its obligations on Cyprus on December 2009 by blackmailing Nicosia to either accept any deal with intransigeant Turkish claims contrary to EU values on the island's political issue, or face threats against the territorial integriy of the EU island, semi-occupied by Ankara's army.

On the contrary, the incoming EU President-in-office, speaking exclusively to "EuroFora", promissed that he will act for EU Council's decisions on December 2009 assessment of Turkey's commitments on Cyprus to be kept.


    Bildt was asked to react to Cyprus' President Christofias' denunciation, earlier this week, that some want to exert "pressure" on Cyprus in order for Turkey to escape from its obligations.

    Avoiding to mention any precise Deadline, Bildt, however, warned about "Consequences" in case of "failure" to reunite Cyprus, but without saying whose responsibility an eventual deadlock might be.  

 Asked by "EuroFora" if there is a risk for "Turkey's commitments to "be forgotten or downgraded", "despite crystal-clear EU Council decisions and EU Parliament's latest Resolution on the assessment to make at the end of this year on Turkey's obligations", according to rumours that, instead of pressing Turkey, on the contrary, there might be "pressure on Cyprus", even "blackmail", as Media reported and President Christofias denounced this week, Bildt denied :

- "No ! ", he clearly replied.


- On the contrary, invited by "EuroFora", to "reassure that the Swedish EU Presidency (7-12/2009) will keep a fair stance, based on principles",  Bildt promised that "we (Swedish EU Presidency) will be very clear on all of the decisions taken by the (EU) Council".

He added, however, that "we have very numerous decisions that have been taken" by EU Council, as if he warned, also, on something else.

- "'I am not aware of any sort of statements coming out today''", Bildt started to say, on our reference to Cyprus' President Christofias" denunciation of Turkish lobby's manoeuvers this week, replying earlier to 'another"EuroFora"'s question during a Press Conference at EU Parliament in Strasbourg.


 - '"I know the issues that you' are concerned with'", he added, remembering  the statements he gave us when Sweden was chairing the PanEuropean CoE on 2008.

- "But, obviously, .. I think that Cyprus' Peace negotiations are extremenly important".

- And "'I think that we are at a unique moment in History, in the sens that both (Cyprus') President Christofias and Mr. Talat (the Turkish Cypriot leader), are personally convinced of the need to overcome the division".

 - "It's 20 Years since the fall of Berlin Wal, but we still have a Capital in Europe (Nicosia) that's divided". ,

- 'I don't that we should loose any time in overcoming that"..

 - ''We should be aware of the fact that success will bring great benefits, but failure, will also have major consequences. There will not be Status Quo' " It's a question of seeking a solution, or entering another situation, which is somewhat difficult to see exactly how that could evolve", he warned.

- "That being said, this is a negotiation for Cyprus itself", Bildt admitted.

 - ''We (EU) can support, the (EU) Commission primarily, be technically helpful, and then, of course, there is a specific role for the UN, when it comes to the Cyprus' situation".  

- "At least so far. It might not be for ever'. Certainly not for ever, but for this period of time", Bildt added, skiping now any reference to concrete threats on UNO's Peace keeping force in face of more than 40.000 Ankara's soldiers, contrary to some Press claims, (See previous NewsReports).


     Replying to another "EuroFora"'s Question,  if anyone might attempt to "impose a Deadline for the conclusion" of Cyprus' Talks on December 2009, Bildt avoided to speak of any precise Time-frame, and indirectly evoked the fact that  35 Years of Turkish Invasion/Occupation obviously durated too long :

'- "If I was from Cyprus, I would say that the Deadline was Yesterday ! '",
Bildt concluded.

Cyprus' Government Spokesman, Stephanou, reportedly pointed out that "a settlement is possible on December if Turkey changes its stance", accepting a solution for the reunification of the island based on UNO resolutiona and EU principles.

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Earlier, EU Chair, Swedish Prime Minister Fredrik Reinfeld, highlighted an "historic opportunity" to "re-Unite" Cyprus according to EU's "basic Values"' (i.e. Human Rights) and 'Rules'", in a last-minute change of his draft speech to EU Parliament in Strasbourg.

    The initial Draft spoke only about "healing" the island.

    Significantly, Reinfeldt linked Cyprus' reunification with Turkey's obligations to respect EU's "Values" and "follow" EU's "common Rules" :

    - What is "called Membership Negotiations" should lead, "at- the end of the day", into "sharing a set of common Basic Values (i.e. Human Rights, Democracy, etc), and following common Rules", stressed Reinfeld from the outset.
    
    - "This is something that those on the Outside (of the EU), are now  contemplating", up "to Ankara", for "a solution" on "Cyprus", observed the EU Chairman, immediately afterwards..  

    - "Both sides of Cyprus have been granted a historic opportunity to together reach an agreement on a solution to re-Unite the island, that has been divided for far too long", said Reinfeldt, modifying his draft text.


-  "The Swedish Presidency will act ...in accordance with Commitments EU has made, on the basis of Criteria that apply", "as a Honest Broker", he promised.    

- "To those on the inside (of the EU), allowing the membership process to become an opportunity to solve protracted disputes, can be tempting", he added.


    "In such cases, we must find solutions that can benefit both sides, and open up a way forward. Otherwise, it would jeopardize the progress we have made towards EU integration", Reinfeldt said.

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