CEDH · PRESS;GENERAL;ENG — 2 novembre 2004

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[1]   Violation of Article 6 § 1 Coulaud v. France (no. 69680/01) Fabre v. France (no. 69225/01)   Jean Coulaud is a French national who was born in 1966 and lives at Roques (France). He received a six-months’ suspended prison sentence for manufacturing and being in possession of cards for illegally decoding encrypted television channels. His appeal to the Court of Cassation was dismissed in September 2000.   Frédéric Fabre is a French national who was born in 1962 and lives at Hesdigneul les Boulogne (France). In November 2002 the Court of Cassation dismissed his appeals against two convictions for attempted fraud and tax evasion for which he had received a suspended prison sentence.   In these two cases, the applicants complained of procedural unfairness in proceedings in the Criminal Division of the Court of Cassation, in that the reporting judge’s report had not been communicated to the defence before the hearing, although it had been communicated to the advocate-general. They relied on Article 6 § 1 of the European Convention on Human Rights (right to a fair trial). Mr Fabre also complained of a breach of his right of access to a court and that proceedings in the Court of Cassation were not held in public.   The Court declared the applications admissible, but solely in so far as they concerned the failure to communicate the reporting judge’s report.   In the Coulaud case, the Court reiterated that, in view of the importance of the reporting judge’s report, the advocate-general’s role and the outcome of the proceedings for the parties, the imbalance created by the failure to disclose the report to the applicants’ advisers as well was not reconcilable with the requirements of a fair trial. It held unanimously that there had been a violation of Article 6 § 1 because of the failure to observe the principles of adversarial procedure and equality of arms.   In the Fabre case, the Court noted that the Court of Cassation had changed its practice after the Court’s findings of a violation against France in previous cases and that the new procedure had been followed. The new practice, under which both the parties and the advocate-general received only the first section of the reporting judge’s report (which included an analysis of the case), did not contravene its case-law. However, in the Fabre case, the applicant maintained that, contrary to the new practice, the analytical section of the report had been communicated to the advocate general, but not to him, as the Government had implicitly admitted. The Court therefore found that the applicant had been prejudiced by an imbalance that was inconsistent with the requirements of a fair trial and held, by six votes to one, that there had been a violation of Article 6 § 1 and that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr Fabre. (The judgments are available only in French).     Violations of Article 6 § 1 Violations of Article 1 of Protocol No. 1 Chivorchian v. Romania (no. 42513/98) Ionescu v. Romania (no. 38608/97)   Maria Arsaluis Chivorchian is a Romanian national who was born in 1979 and lives in Bucharest. In her capacity as an heiress, she brought an action for the return of a piece of agricultural land which the State had expropriated without paying compensation and of another piece of land of which the State had taken possession. The properties were returned to her on 30 November 1999 and 2 April 2003.   Paul Ionescu, is a Romanian national who was born in 1934 and lives in Craiova (Romania). In his capacity as an heir, he brought an action for the return of a house and adjoining land in Bucharest.   In both cases, the applicants brought proceedings in the domestic courts for the return of their properties. Their claims were upheld by court decisions which became final and unappealable. However, these were set aside following an application by Principal State Counsel for Romania. The applicants complained under Article 6 § 1 of the Convention (right to a fair trial), of the Supreme Court of Justice’s refusal to recognise that the domestic courts had jurisdiction to hear applications for the return of land. They alleged that the procedure in the Supreme Court of Justice was unfair, while Mr Ionescu also alleged that the Supreme Court was not independent and impartial. They further complained under Article 1 of Protocol No. 1 (protection of property) of an infringement of their right to the peaceful enjoyment of their possessions.   The Court reiterated that, by setting aside a final judgment, the Supreme Court of Justice had violated the right to a fair hearing, in breach of Article 6 § 1. Similarly, the Supreme Court of Justice’s ruling that the courts had no jurisdiction to hear the applicants’ claims for the return of their properties was in itself contrary to the right of access to a court. Consequently, the Court held unanimously in both cases that there had been a violation of Article 6 § 1 on both counts. In the light of those findings, it considered it unnecessary to examine Mr Ionescu’s other complaints under Article 6 and declared Ms Chivorchian’s additional complaint inadmissible. The Court further found that the applicants’ rights of property had been established by final, irreversible judgments and were accordingly irrevocable. The effect of the Supreme Court of Justice’s judgments had been to deprive them of their properties. The Court therefore considered that the applicants had borne, and Mr Ionescu continued to bear, an excessive and individual burden. Consequently, the Court held unanimously in both cases that there had been a violation of Article 1 of Protocol No. 1.   Under Article 41 (just satisfaction), the Court awarded Ms Chivorchian EUR 5,000 for pecuniary damage and EUR 1,000 for non-pecuniary damage. It considered that the question of the application of Article 41 was not ready for decision in Mr Ionescu’s case and reserved it. (The judgments are available only in French.)   Violation of Article 6 § 1 Henworth v. the United Kingdom (no. 515/02) The applicant, Frank Henworth, is a British national. He is currently serving a life sentence in Long Lartin Prison (the United Kingdom). He complains under Article 6 § 1 (right to a fair trial within a reasonable time) of the length of the criminal proceedings against him, which lasted some six years and ended with his conviction for murder.   The European Court of Human Rights held, unanimously, that there had a violation of Article 6 § 1 and made no award for just satisfaction. (The judgment is available only in English.)   Karakoç   v. Turkey (no. 28294/95)   Friendly settlement The applicant, Erdal Karakoç, is a Turkish national who was born in 1967 and lives at Hozat (Turkey). He claimed that in October 1994 security forces evacuated the village of Kozluca where he lived with his family and that he was forced to leave his village and set up home at Hozat after his house was burnt down and his possessions destroyed.   He alleged a violation of Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair trial), 8 (right to respect for private and family life), 13 (right to effective remedy), 14 (prohibition of discrimination) and 18 (limitation on use of restrictions on rights), and Article 1 of Protocol No. 1 (protection of property).   The case has been struck out following a friendly settlement in which EUR 48,000 is to be paid for any non-pecuniary and pecuniary damage, costs and expenses.   The Turkish Government also made the following declaration:   “The Government regret the occurrence, as in the present case, of individual cases of destruction of home, property and possessions resulting from the acts of agents of the State in south-east Turkey, obliging civilians to leave their villages, and of failure by the authorities to carry out effective investigations into the circumstances surrounding such events, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such acts and to remedy such failures. It is accepted that such acts and failures constitute a violation of Articles 8 and 13 of the Convention and Article 1   of Protocol No. 1 and, given the circumstances of the destruction and the emotional suffering entailed, of Article 3 of the Convention.   “The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the individual rights guaranteed by the aforementioned Articles – including the obligation to carry out effective investigations – are respected in the future. It is noted in this connection that there is no obstacle to the return of the applicant to his village. Furthermore, necessary provisions for the restoration of his house will be supplied in accordance with the 'Return to Village and Rehabilitation Project'. It is further noted that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of destruction of property in circumstances similar to those of the instant application and in more effective investigations being carried out…   “The Government consider that the supervision by the Committee of Ministers of the Council of Europe of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co ‑ operation in this process will continue to take place.”   (The judgment is available only in English.)   Violations of Article 6 § 1 Violation of Article 1 of Protocol No. 1 Tregubenko v. Ukraine (no. 61333/00) The applicant, Leonid Tregubenko, is a Ukrainian national who was born in 1947 and lives in Toronto (Canada).       From 1988 the applicant ran a business in Yalta. In January 1991 he tried to exchange   230,000 Soviet roubles in 50 and 100 old rouble notes (which had ceased to be legal tender and had been replaced by new bank notes). Yalta Exchange Commission refused to exchange the full amount because of an alleged lack of proof as to the legality of the source of the applicant’s income, and limited the exchange to 2,462 roubles. The remaining sum was not compensated.   In May 1991 the State Security Service checked the legality of the applicant’s business and found no irregularities.   On 16 October 1991 Yalta City Court ordered Yalta City Council to exchange all the money deposited by the applicant.   This judgment was upheld by the Civil Chamber of the Supreme Court of Ukraine and became final.   However, following supervisory review proceedings, the judgment was quashed by the   Plenary of the Supreme Court on the ground that the dispute was outside the courts’ jurisdiction under the legislation in force in 1991.   The applicant alleged that he was denied access to a court and that the quashing of a final and binding court decision in his favour in supervisory review proceedings violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.   The European Court of Human Rights observed that, at the material time, the Deputy Chairman of the Supreme Court of Ukraine had the power under Article 328 of the Code of Civil Procedure to lodge an application for the supervisory review of a final judgment. The exercise of that power was not subject to any time-limit, so that judgments were liable to challenge indefinitely. By allowing the application lodged under that power, the Supreme Court of Ukraine set at naught an entire judicial process which had ended in a final and binding judicial decision and which had also been partially executed. The Court considered that the use of the supervisory review procedure had infringed the principle of legal certainty and the applicant’s “right to a court”.   The Court therefore held, unanimously, that there had been a violation of Article 6 § 1.   The Court further noted that the Plenary of the Supreme Court of Ukraine’s decision that it had no jurisdiction was itself contrary to the right of access to a tribunal. The Court therefore held, unanimously, that there had also been a violation of Article 6 § 1 on that account.   There being no public interest defence justifying the deprivation of the applicant’s property, the Court also held, unanimously, that there had been a violation of Article 1 of Protocol No 1.   The applicant was awarded EUR 53,657.81 for pecuniary damage and EUR 5,000 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in English.)   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   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. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.