CEDH · PRESS;GENERAL;ENG — 22 décembre 2004

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[1]   Karin Hannak v. Austria (application no. 70883/01)   Violation Article 6 § 1 The applicant, Karin Hannak, is an Austrian national. She was born in1940 and lives in Wels (Austria). On 18 December 1998 she was convicted of fraudulent bankruptcy.   The applicant complained of the length of the criminal proceedings against her, which lasted more than 15 years and nine months. She relied on Article 6 § 1 (right to a fair trial within a reasonable time) of the European Convention on Human Rights.   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 of the European Convention and awarded the applicant 9,000   euros (EUR) for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in English.)   Blommen v. Belgium (no. 47265/99)   Struck out The applicant, Marijke Blommen, is a Belgian national. She was born in 1961 and lives in Lummen (Belgium). She complains under Article 6 § 1 (right to a fair hearing) and Article 14 (prohibition of discrimination) of the refusal of her application for legal aid for an appeal to the Court of Cassation in divorce proceedings.     Although she had been warned that her application could be struck out, the applicant had not been in touch with the Court since February 2003. Taking her attitude into account, the Court considered that she no longer intended to pursue her application and accordingly decided unanimously to strike out the case. (The judgment is available only in French.)     Violations Article 5 § 3   Violation Article 5 §§ 1 and 5 Bojilov v. Bulgaria (no. 45114/98)   No violation Article 5 § 1 (c) The applicant, Lazar Tzvetanov Bojilov, is a Bulgarian national who was born in 1970 and lives in Hadzhievo (Bulgaria).   He was arrested on 28 January 1997 in the course of an investigation into incidents that occurred during a demonstration outside the National Assembly. Proceedings were brought against him, following which he was ordered to pay a fine for theft. He was released on 1 April 1998.   The applicant complained under Article 5 (right to liberty and security) that his detention had not been ordered in accordance with a procedure prescribed by law and had not been lawful.   The Court observed that it had already found that the system of detention pending trial in operation in Bulgaria until 1 January 2000 was contrary to Article 5 § 3, since neither the investigators before whom accused persons were brought nor the prosecutors who approved detention orders could be considered to be “officers authorised by law to exercise judicial power” within the meaning of the Convention. The applicant’s detention had taken place before 1 January 2000.   Neither the investigator who had ordered it nor the prosecutor who had subsequently upheld the order could be regarded as independent and impartial, in view of the role they played in the prosecution and their potential participation as a party to the judicial proceedings. The Court therefore held that there had been a violation of Article 5 § 3.   As to whether the detention had been lawful, the Court considered that there had been no breach of Article 5 § 1 (c).   The Court noted that the applicant had been detained for one year, one month and 15 days. The grounds given by the prosecutor for keeping him in detention were not unreasonable and had initially been sufficient to justify the detention. However, the danger of his absconding or obstructing the investigation had necessarily lessened with time, particularly after the preliminary investigation had ended on 10   May 1997. That factor had caused the Sofia District Court to order the applicant’s release on bail on 10 November 1997. However, as the applicant had not lodged the necessary security owing to his lack of resources, he had been kept in detention.     The court had not ordered his unconditional release until 12 March 1998. Accordingly, the applicant had been detained for a further four months on account of his inability to pay the required security after a court had found that there were no longer any grounds for his detention. In those circumstances, the Court considered that the Bulgarian authorities had not provided relevant and sufficient grounds to justify the length of the applicant’s detention. Finding it unnecessary to examine whether the proceedings had been conducted with due diligence, the Court held unanimously that there had been a violation of Article 5 § 3.   The Sofia District Court had ordered the applicant’s release on 12 March 1998. However, he had not actually been released until 20 days later. Although the Court acknowledged that some delay in carrying out a decision to release a detainee was often inevitable, a delay of that length was hard to justify. The Court therefore held unanimously that there had been a violation of Article 5 § 1.   Furthermore, contrary to what the Government had maintained, the applicant had not had an enforceable right to compensation under the 1988 State Responsibility for Damage Act, which provided for compensation where a detention had been wrongful under domestic legislation, since his continued detention had not been deemed contrary to Bulgarian law. The Court therefore held that there had also been a violation of Article 5 § 5.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant EUR 3,000 for non-pecuniary damage. (The judgment is available only in French.)     Violation Article 5 § 3 Iliev v. Bulgaria (no. 48870/99)   Violation Article 6 § 1 The applicant, Yordan Boyanov Iliev, is a Bulgarian national who was born in 1964 and lives in Kyustendil (Bulgaria).   In the course of criminal proceedings concerning an offence of car theft, committed as part of a group and involving violence, the applicant was arrested and placed in pre-trial detention on 18 May 1996. On 15 November 1999 the Kyustendil Regional Court found him guilty and sentenced him to five years’ imprisonment. Its judgment was subsequently set aside by the Court of Appeal on procedural grounds, after the court had held a hearing in May 2000. The applicant was released on 7 June 2000 and was eventually sentenced to four years’ imprisonment on 24 March 2003. Since the sentence was covered by the period he had spent in detention pending trial, he was not imprisoned.   Relying on Article 5 (right to liberty and security), the applicant complained of the unlawfulness and the excessive length of his pre-trial detention. He also submitted that the excessive length of the criminal proceedings had infringed Article 6 § 1 (right to a fair hearing within a reasonable time).   The Court declared the application admissible in respect of the complaints under Articles 5 § 3 and Article 6 § 1 only and declared the remainder of the complaints inadmissible.   The length of the applicant’s detention until the judgment of 15 November 1999 in which he was sentenced to a non-suspended term of imprisonment had amounted to three years, five months and 28 days. The period between his conviction in 1999 and the setting aside of the judgment could not be taken into account for the purposes of Article 5 § 3. The length of his detention after the judgment had been set aside had amounted to approximately one month.   The applicant had initially been detained solely on the ground that separate criminal proceedings were pending against him. The court had subsequently rejected applications for his release, mainly on the ground that there were no new circumstances to warrant amending the detention order. On one occasion the risk of his absconding had been cited, without any particular reasons being given to support that conclusion. The Court considered that the Bulgarian authorities had not provided relevant and sufficient reasons to justify the applicant’s prolonged detention. In those circumstances it was not necessary to examine whether the proceedings had been conducted with due diligence and the Court held unanimously that there had been a violation of Article 5 § 3.   The Court further noted that the proceedings in question had lasted nine years, three months and seven days. Having regard to the circumstances of the case, the Court considered that such a length did not satisfy the “reasonable time” requirement in Article 6 § 1, and therefore held unanimously that there had been a violation of that provision.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 4,000 for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.)     Violations Article 5 § 3   Violation Article 5 §§ 1, 4 and 5   Violation Article 6 § 1 Mitev v. Bulgaria (no. 40063/98)   Violation Article 13 The applicant, Iavor Deltchev Mitev, is a Bulgarian national who was born in 1967 and lives in Sofia.   Between 1992 and 1997 he was taken into police custody on several occasions in the course of more than 20 sets of criminal proceedings instituted against him for theft. The present application concerns two groups of proceedings: one concerning petty thefts and the second concerning icons and antiquities.   In the first group of proceedings, concerning 12 investigations which were eventually joined, the applicant was charged for the first time on 26 October 1993. On 29 March 1999 Sofia District Court convicted him on some of the charges and sentenced him to three years’ imprisonment, suspended. His sentence was upheld by Sofia City Court. The other group of proceedings began when the applicant was charged in 1996. Sofia City Court sentenced him to ten years’ imprisonment on 23 December 1999. The applicant appealed and the proceedings are still pending before the Bulgarian courts.   The applicant was arrested on several occasions, including on 5 August 1994. He repeatedly applied to be released, but to no avail. On 25 September 1997 the District Court ordered his release on the grounds that he was suffering from drug addiction and was in need of medical treatment and that all the evidence in the case had been collected. However, the applicant was not released until 23 October 1997.   He claimed compensation for his period of unlawful detention; the proceedings are apparently still pending before the Court of Cassation.   The applicant complained, among other things, that he had not been brought before a judge or other officer exercising judicial power; he had been deprived of his liberty unlawfully; two of his judicial appeals against his detention had never been examined; and the criminal proceedings against him had been excessively lengthy. He relied on Article 5 §§ 1, 3, 4, and 5 (right to liberty and security), Article 13 (right to an effective remedy) and Article 6 § 1 (right to a fair hearing within a reasonable time).   The Court observed that it had already found that the system of detention pending trial as it had existed in Bulgaria until 1 January 2000 was contrary to Article 5 § 3, since neither the investigators before whom accused persons were brought nor the prosecutors who approved detention orders could be considered to be “officers authorised by law to exercise judicial power” within the meaning of the Convention. It accordingly held unanimously that there had been a violation of Article 5 § 3 on that account.   The Court noted that the applicant had been kept in pre-trial detention for an overall period of three years and eight months. The reasons given by the authorities to justify his continued detention appeared to the Court to be relevant and sufficient. However, the Court considered that the proceedings had not been conducted with due diligence and therefore held that there had been a violation of Article 5   § 3 on that account also.   The Court further observed that although his release had been ordered on 25 September 1997, the applicant had not been released until 23 October. He had therefore been unlawfully detained for an additional 28 days. The Court accordingly held unanimously that there had been a violation of Article 5 § 1.   It also appeared that the applicant had applied to be released on 12 August 1997 but that his application had not been examined until 25 September 1997, 44 days later. In those circumstances, the Court held unanimously that there had been a violation of Article 5 § 4.   As to the applicant’s claim for compensation for the time he had spent in pre-trial detention until his release was ordered on 25 September 1997, the Court noted that that period had not been regarded as unlawful by the Bulgarian courts. Having regard to the circumstances of the case, it considered that Bulgarian law did not afford an enforceable right to compensation and accordingly held unanimously that there had been a violation of Article 5 § 5. As to the applicant’s continued detention between 26 September and 23 October 1997 pending his actual release, the Court considered that it was not necessary to examine the question given that proceedings on the matter were still pending before the Bulgarian courts.   As to the length of the proceedings in question – six years and seven-and-a-half months for the case concerning the petty thefts and nine years and five months for the case concerning the theft of icons and antiquities – the Court considered, in the circumstances of the case, that they did not satisfy the “reasonable time” requirement in Article 6 § 1. It accordingly held unanimously that there had been a violation of the Convention in respect of both groups of proceedings. The Court further held that Article 13 had been infringed on account of the lack of an effective remedy in domestic law in respect of the excessive length of proceedings.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 4,000   for non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available only in English.)     Badovinac v. Croatia (no. 9761/02)   Friendly settlement The applicant, Nikola Badovinac, is a Croatian national. He was born in 1932 and lives in Split, Croatia. In February 1992 his house, situated in Kaštel Novi, was blown up by unknown persons.     The applicant complained that the enactment of the Civil Obligations (Amendment) Act 1996 violated his right of access to court guaranteed by Article 6 § 1 (right to a fair hearing) and his right to an effective remedy guaranteed by Article 13 (right to an effective remedy).   The case has been struck out following a friendly settlement in which EUR 6,000 is to be paid to the applicant for pecuniary and non-pecuniary damage and for costs and expenses. (The judgment is available only in English.)   Lebègue v. France (no. 57742/00)   Violation Article 6 § 1 The applicants, Maurice and Lucette Lebègue, and their three children, Antoine and Philippe Lebègue and Christine Fesquet, are French nationals. They were born in 1927, 1929, 1957, 1961 and 1963 respectively and live in Hellemmes, Armentières and Belleneuve (France). In the context of a dispute concerning the estate of their son and brother, the applicants appealed to the Court of Cassation for a declaration acknowledging them as heirs, to the detriment of the deceased’s former wife.   The applicants complained that the proceedings before the Civil Division of the Court of Cassation were unfair in that they were not sent a copy of the reporting judge’s report and of the draft judgment. They relied on Article 6 § 1 (right to a fair hearing).   Referring to its case-law, the Court reiterated that the first part of the reporting judge’s report, which contained a statement of the facts, the proceedings and the grounds of appeal, was not protected by the confidentiality of the proceedings. Where necessary, a copy had to be provided, under equivalent conditions, to the parties and to the advocate-general. This had not been done, and accordingly the Court held unanimously that there had been a violation of Article 6 § 1.   With the exception of Maurice Lebègue, to whom it awarded 300 EUR for non-pecuniary damage, the Court considered that the finding of a violation in itself constituted sufficient just satisfaction for the non-pecuniary damage suffered by the applicants. (The judgment is available only in French.)       Violation Article 6 § 1 Androne v. Romania (no. 54062/00)   Violation Article 1 of Protocol No. 1 The applicants, Iulian Androne and his mother Gheorghita Androne, are Romanian nationals. They were born in 1951 and 1929 respectively and live in the United States.     They owned a house in Bucharest, which the State confiscated in 1985 when they left the country. The applicants brought several actions to recover possession of this property.     On 25 September 1997 Bucharest Court of First Instance found in their favour and ordered that the disputed property be restored to them; this judgment became final. However, on 22 November 2001, Brasov County Court upheld an application by the Procurator-General to reopen the proceedings and ruled that the applicants’ action had been unfounded.   The applicants complained that the County Court set aside a final judicial decision in their favour following an application to reopen the proceedings; they relied on Article 6 § 1 (right to a fair hearing). In addition, they complained under Article 1 of Protocol No. 1 (protection of property) that there had been an infringement of their right to the peaceful enjoyment of their possessions.   The Court considered that the reopening of proceedings which had ended with a final judgment, following an application to that effect submitted at a late stage, and the quashing of the final judgment in the applicants’ favour of 22 November 2001 had infringed the principle of legal certainty and thus the applicants’ right to a fair hearing within the meaning of Article 6 § 1. Consequently, it held unanimously that there had been a violation of Article 6 § 1 in that respect.   At the same time, the Court noted that the applicants’ right of property had been established by a final judgment, and that this right was accordingly not revocable. The County Court’s judgment had the effect of depriving them of their property. In those circumstances, the Court considered that a fair balance had not been struck between the demands of the general interest and the requirements to safeguard the individual’s fundamental rights, and that for more than seven years the applicants had borne, and continued to bear, an individual and excessive burden. Consequently, the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1.   The Court decided that the Romanian State was to restore the disputed property to the applicants within three months from the date on which its judgment became final. If the property were not restored, the State was to pay them EUR 60,000 for pecuniary damage. In addition, the Court awarded the applicants EUR 6,000 jointly for non-pecuniary damage and EUR 6,054 for costs and expenses. (The judgment is available only in French.)     Kaptan v. Turkey (no. 46769/99)   Friendly settlement The applicant, Resit Kaptan, is a Turkish national, born in 1969. At the time of his application he was being held in Gaziantep Prison (Turkey).   The applicant was arrested by the security forces on 23 October 1992 on suspicion of having provided logistical assistance to PKK militants and placed in police custody. He remained in custody until 12 November, when he was brought before a judge, who ordered that he be placed in pre-trial detention. On 1 November 2004 Diyarbakır Assize Court sentenced him to 12 years and six months’ imprisonment for seeking to undermine the territorial integrity of the State and membership of an armed group.   The applicant submitted, in particular, that during his time in police custody he had been subjected to treatment contrary to Article 3 (prohibition of torture and inhuman and degrading treatment) of the Convention. He also complained of the excessive length of his pre-trial detention and alleged a violation of Article 5 § 3 (right to liberty and security). Relying on Article 6 (right to a fair trial), he further complained that the criminal proceedings against him were unfair in several respects.   The case has been struck out following a friendly settlement in which the applicant is to be paid EUR 18,000. (The judgment is available only in French.)   Metin Yılmaz v. Turkey (no. 45733/99)   Violation Article 6 § 1 Şehmus Aydın v. Turkey (no. 40297/98) Metin Yılmaz is a Turkish national who was born in 1957. Sehmus Aydin is a Turkish national who was born in 1939. At the material time they both lived in İzmir (Turkey). The applicants were both sentenced to three years and nine months’ imprisonment by İzmir National Security Court for having provided assistance to illegal organisations, namely the PKK in Mr Aydin’s case and the TİKB (Union of Revolutionary Communists of Turkey) and the MLKP-K (Communist Party - Marxist-Leninist) in Mr Yılmaz’s case.   Relying on Article 6 § 1 (right to a fair trial), the applicants complained that the proceedings which had led to their convictions were unfair, particularly with regard to the fact that a military judge sat on the bench at the National Security Court.   The Court held unanimously that there had been a violation of Article 6 §   1 in respect of the complaint concerning the National Security Court’s lack of independence and impartiality. As to the other complaints related to the unfairness of the proceedings, it reiterated that a court whose lack of independence and impartiality has been established could not, in any circumstances, guarantee a fair trial to the persons subject to its jurisdiction and held that there was consequently no need to examine those complaints.   As to the application of Article 41 (just satisfaction), the Court decided unanimously that the findings of violations constituted in themselves sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It reiterated that, where it found that an applicant’s conviction had been delivered by a court which was not independent and impartial within the meaning of Article 6 § 1, the appropriate relief would in principle be to have the case re-examined promptly by an independent and impartial court. The Court awarded each of the applicants EUR 2,000 for costs and expenses. (The judgments are available only in French.)     ***   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. More detailed information about the Court and its activities can be found on its Internet site. [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.