CEDH · PRESS;GENERAL;ENG — 3 février 2005

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[1]     Violation Article 14 F.L. v. Austria (application no 18297/03) F. L. is an Austrian national, who was born in 1964 and lives in Vienna.   On 15 January 2002 he was convicted of having committed homosexual acts with adolescents, contrary to Article 209 of the Criminal Code, which criminalised homosexual acts of adult men with consenting adolescents between the ages of 14 and 18. He was sentenced to three months’ imprisonment suspended on probation.   The applicant complained of the maintenance in force of Article 209 and of his conviction. He claimed that Article 209 was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable. He relied on Article 8 (right to respect for private life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.   The European Court of Human Rights noted that the applicant’s conviction still stood despite the subsequent repeal of Article 209 of the Criminal Code.   The Court held unanimously that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention and that it was not necessary to rule on the question of whether there had been a violation of Article 8 taken alone. The applicant was awarded EUR 17,500 for non-pecuniary damage and EUR 13,000 for costs and expenses. (The judgment is available only in English.)   Thaler v. Austria (no. 58141/00)   Violation Article 6 § 1 The applicant, Michael Thaler, is an Austrian national, who was born in 1944 and lives in Innsbruck.   Mr Thaler, who was a doctor at the time, brought two sets of proceedings against the Tyrol Regional Health Insurance Board. In the first he claimed that he should be paid an additional 120 Austrian Schillings (ATS) for doctor’s fees and, in the second, that he was owed an additional ATS 18 million (about 1.3 million euros) on the ground that the rate for doctor’s fees, which was determined by a general agreement between the Association of Social Insurance Boards and Tyrol Regional Health Insurance Board, was too low. His case was dismissed by the Regional Appeals Commission and his further complaint that the Regional Appeals Commission was not independent was dismissed by the Constitutional Court.   The applicant claimed that the Regional Appeals Commission could not be regarded as an independent and impartial tribunal as required by Article 6 § 1 (right to a fair hearing).   The Court noted that the assessors appointed to the Regional Appeals Commission were nominated by and had close links with the two bodies which had drawn up the general agreement at issue. In the first set of proceedings, the mere fact that the two bodies had appointed the assessors to the Regional Appeals Commission was in itself sufficient to justify the applicant’s fears about the Commission’s lack of independence and impartiality. In the second set of proceedings, the two assessors appointed by the Association of Social Insurance Boards were also senior officials of the Tyrol Regional Health Insurance Board which must have aggravated the applicant’s fears.   Nor was the lack of independence or impartiality of the Regional Appeals Board remedied on appeal; its decision was not subject to review by a judicial body, an appeal to the administrative court being excluded by law and the jurisdiction of the constitutional court being confined to questions of constitutional law.   The European Court of Human Rights therefore held unanimously that there had been a violation of Article 6 § 1 and that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage. The Court awarded the applicant EUR   5,000 for costs and expenses. (The judgment is available only in English.)     Fociac v. Romania (no. 2577/02)   No violation Article 6 § 1 The applicant, Mihai Fociac, is a Romanian national who was born in 1943 and lives in Petroşani (Romania).   He was dismissed from his job as a hotel manager for a private company in April 1993 for professional misconduct. He challenged that decision in the Romanian courts and obtained a final order for his reinstatement and the payment of his salary for the relevant period. Despite his efforts to enforce the court order, the applicant was allocated jobs as a caretaker and a locksmith and dismissed on two further occasions by his employer. The Romanian courts declared the dismissals null and void and made orders for his reinstatement and requiring the company to pay him his arrears of salary with interest.   In 2001 Mr Fociac reached retirement age.   He complained, inter alia , that he had been unable to enforce the court orders requiring his employer to reinstate him and to pay his accrued salary. He relied on Articles 6 (right to a fair hearing) and 13 (right to an effective remedy) and on Article 1 of Protocol No. 1 (protection of property).   The Court declared only the complaint relating to access to a court admissible. It noted that despite the applicant’s efforts, either personally or through the intermediary of the authorities, the company concerned had consistently refused to comply with the orders of the Romanian courts and had preferred to suffer the penal and pecuniary consequences its conduct entailed.   The Romanian courts had assisted the applicant throughout in the enforcement of the final decisions, had convicted the employer’s legal representative for refusing to comply with the orders and ordered her to pay the applicant the salary owed together with interest and damages for non-pecuniary losses.   The Court found that the State had made every required effort in order to secure compliance with the judicial decisions in favour of the applicant and held unanimously that there had been no violation of Article 6   §   1 of the Convention. (The judgment is available in French only.)     Violations Article 6 § 1 Iacob v. Romania (no. 39410/98)   Article 1 of Protocol No. 1 The applicant, Eugenia Irinel Iacob, is a Romanian national who was born in 1930 and lives in Bucharest. She brought an action in her capacity as an heir for the return of a house and its land in Bucharest which had been nationalised by the State in 1950. Relying on Article 6 (right to a fair hearing), the applicant complained of the Supreme Court of Justice’s refusal to accept that the domestic courts had jurisdiction to hear actions for the recovery of land. In addition, she complained under Article 1 of Protocol No. 1 (protection of property) of interference with her right to the peaceful enjoyment of her possessions. The Court noted that, by setting aside a final court decision, the Supreme Court of Justice had infringed the applicant’s right to a fair hearing, in violation of Article 6 § 1. Further, the Supreme Court’s ruling that the ordinary courts had no jurisdiction to hear actions for the return of land was in itself inconsistent with the right of access to a court. Accordingly, the Court held unanimously that there had been a violation of Article 6 § 1 on those two points. The Court found that the applicant’s right of property had been established in a final judgment and accordingly was irrevocable. The effect of the Supreme Court’s judgment had been to deprive her of her property. The fair balance that had to be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights had thus been upset and the applicant 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 held that Romania was required to return the house and the land on which it stood to Ms Iacob within three months from the date its judgment became final. In default, the authorities were required to pay EUR 250,000 for pecuniary damage and EUR 3,000 for non-pecuniary damage. (The judgment is 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.