CEDH · PRESS;GENERAL;ENG — 24 mars 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s5994C8CF { width:72.1pt; display:inline-block } .sB2EB289F { width:134.15pt; display:inline-block } .s5D692C31 { width:66.13pt; display:inline-block } .s7E16EC6C { width:82.12pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sC0807AB4 { width:116.15pt; display:inline-block } .sDE1F8FF9 { width:337.58pt; display:inline-block } .s7B59859F { width:238.25pt; display:inline-block } .s24A0D980 { width:88.18pt; display:inline-block } .sD472578 { width:317.57pt; display:inline-block } .s704AE7AC { width:48.17pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s52D43A87 { width:69.49pt; display:inline-block } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s5D8BCAF7 { width:3.12pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   150 24.3.2005   Press release issued by the Registrar   Chamber judgments concerning Austria, Bulgaria, Croatia, Germany, Italy, Romania and Russia   The European Court of Human Rights has today notified in writing the following eight Chamber judgments, none of which are final. [1]   Osinger v. Austria (application no 54645/00)   Violation of Article 6 § 1 The applicant, Franz Osinger, is an Austrian national, born in 1937 and living in Mank, Austria.   The case concerns proceedings brought to determine who should inherit a farm which had belonged to the applicant’s brother.   The applicant complained that in the succession proceedings there had been no public hearing as required under Article 6 § 1 (right to a public hearing) 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 Convention and that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. The Court awarded the applicant 4,000 euros (EUR) for costs and expenses. (The judgment is available only in English.)   Rieg v. Austria (no. 63207/00)   No violation of Article 6 § 1 The applicant, Gerda Rieg, is a German national, born in 1954 and living in Laupheim (Germany).   On 17 April 1997 she was fined 1,500 Austrian schillings (ATS) for failing to disclose the full name and address of the driver of her car after a radar-trap in Austria identified the car as having broken the speed limit.   She complained that the obligation to disclose this information violated the presumption of innocence and her right not to incriminate herself. She relied on Article 6 (right to a fair hearing).   The Court noted that the heart of the applicant’s complaint was that her right to remain silent and not to incriminate herself was violated, in that she was punished for having refused to give information which might have incriminated her in the context of criminal proceedings for speeding. However, at no time were proceedings for speeding conducted against her.   The Court reiterated that the link between the applicant’s obligation to name the driver of her car and possible criminal proceedings for speeding against her remained remote and hypothetical. Without a sufficiently concrete link with those criminal proceedings, the use of compulsory powers (i.e. the imposition of a fine) to obtain information did not raise an issue concerning the applicant’s right to remain silent and the privilege against self-incrimination.   The European Court of Human Rights held by five votes to two that there had been no violation of Article 6 § 1. (The judgment is available only in English.)   Stoichkov v. Bulgaria (no. 9808/02)   Violation of Article 5 §§ 1, 4 and 5 The applicant, Emil Georgiev Stoichkov, is a Bulgarian national, born in 1958 and presently detained in Bobov Dol Prison (Bulgaria).   Between 1975 and 1988 the applicant was convicted of theft, deserting military duties and possession of narcotic drugs. He left Bulgaria in 1988. In October 1989 he was sentenced to ten years’ imprisonment for rape and attempted rape. In 1990, the applicant settled in the United States of America, where he lived until 1999. He returned to Bulgaria and was arrested and taken to prison to serve his sentence in February 2000.   The applicant complained that his imprisonment in February 2000 was unlawful and arbitrary, that he could not take judicial proceedings to obtain his release and that he did not have an enforceable right to compensation. He relied on Article 5 (right to liberty and security).   The European Court of Human Rights observed that there was no indication that the applicant had waived his right to appear and defend himself. He should, therefore, have had the opportunity to have the proceedings against him reopened and the merits of the rape charges against him determined in his presence. Since 1 January 2000 Bulgarian law had expressly provided for such a possibility. However, when the applicant requested that his case be reopened – approximately one year after his arrest – the Supreme Court of Cassation refused, essentially on the ground that the case ‑ file of the original proceedings had been destroyed in 1997, which, in its view, rendered a rehearing impossible in practice. The applicant subsequently requested the restoration of the case ‑ file, but had apparently received no reply to his request. He was thus deprived of the possibility to obtain from a court, which had heard him, a fresh determination of the merits of the charges on which he was convicted.   The Court therefore considered that the criminal proceedings against the applicant, coupled with the impossibility to obtain a fresh determination of the charges against him from a court which had heard him, were manifestly contrary to the principles embodied in Article 6. Therefore, while his initial deprivation of liberty in February 2000 might be deemed justified under Article 5 § 1 (a), having been effected for the purpose of enforcing a lawful sentence, it ceased to be so after 19 July 2001, when the Supreme Court of Cassation refused to reopen   the proceedings.   The Court therefore held, unanimously, that there had been a violation of Article 5 § 1.   The Court also noted that the legality of the applicant’s arrest was not clear and needed to be determined by a court. However, there was no provision expressly providing for judicial review of such issues and no general habeas corpus procedure applying to all kinds of deprivation of liberty. The Court therefore held, unanimously, that there had been a violation of Article 5 § 4.   In addition, finding that Bulgarian law did not provide the applicant with an enforceable right to compensation, the Court held, unanimously, that there had been a violation of Article 5 §   5.   The Court observed that the most appropriate form of redress for the violation of Article 5 § 1 (a) found in the applicant’s case would be to reopen the proceedings and retry the applicant in keeping with all the requirements of a fair trial. The Court awarded the applicant EUR 8,000 for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in English.)   Lulić and Becker v. Croatia (no. 22857/02)   Violation of Article 6 § 1 The applicants, Branka Lulić and Martina Becker, are Croatian nationals, born in 1954 and 1954 and 1979 respectively.   The applicants brought proceedings against the State after their house in Suhopolje was blown up by unknown perpetrators in 1992. The proceedings were stayed, under the 1996 Amendment to the Civil Obligations Act.   They complained that the enactment of the 1996 Amendment violated their right of access to a court guaranteed by Article 6 § 1 (right to a fair hearing).   The European Court of Human Rights noted that the proceedings had been de facto stayed from 3 February 1996, the day on which the 1996 Amendment entered into force, until at least 31 July 2003, when the 2003   Liability Act entered into force, i.e. for a period of seven-and-a-half years, of which some five years and six months occurred after the Convention’s entry into force in respect of Croatia on 5   November 1997.     Given the long period for which the applicants were prevented from having their civil claim determined by the domestic courts as a consequence of a legislative measure, the Court held, unanimously, that there had been a   violation of Article 6 § 1.   The Court awarded the applicants, jointly, EUR 8,000 for non-pecuniary damage. (The judgment is available only in English.)   Epple v. Germany (no. 77909/01)   Violation of Article 5 § 1 (b) The applicant, Ulrich Epple, is a German national who was born in 1970 and lives in Wasserburg (Germany).   On 18 July 1997 a folk festival was held on Lindau Island. The seventh Lindau Chaos Day had also been scheduled for the same date but had been banned because of the risk of threats to public safety and order.   At about 6 p.m. the applicant was asked by the police to leave the festival site, but refused. On account of that refusal, his punk-like appearance and the fact that the central police database showed that he had already attended past Chaos Days both in Lindau and other towns, the police then told him to leave the island and not to return for the duration of the weekend. The applicant refused to comply and was taken to the police station, where he was held until 1.45 p.m. the following day.   The German courts ruled that his detention was lawful.   The applicant submitted that his arrest and detention breached Article 5 of the Convention (right to liberty and security). He also complained under Articles 10 (freedom of expression) and 14 (prohibition of discrimination) that his right to freedom of expression had been infringed and that he had been discriminated against on account of his punk-like appearance.   The Court declared the application admissible solely with regard to the complaint under Article 5 § 1.   Like the German courts, the Court considered that the applicant’s arrest and initial detention by the police did not contravene Article 5 § 1. As to the length of the detention, it noted that the applicant had been held for more than 19 hours, as the   Lindau District Court did not sit at weekends and the judge on duty on Saturday 19 July 1997 had arrived late (at about 11.30   a.m. instead of 10 a.m.) and had had to consider applications by a total of 17 people concerning the lawfulness of their detention.   There had been no formal failure to comply with the statutory time-limit, as section 20(3) of the Police Act laid down that in the absence of a prior court order for their continued detention, persons in police custody were in all cases to be released at the latest at the end of the day following their arrest. However, the Court noted that the offence for which the applicant was arrested – refusing to comply with an order to leave Lindau Island for the weekend – carried a maximum fine 250   euros.   In the light of the circumstances of the case and the importance of the right to liberty in the Convention, the Court found that the combination of the period the applicant had spent in police custody and the judge’s delay in considering his case meant that a proper balance had not been struck between the need to enforce the order made against the applicant and the applicant’s right to liberty. Accordingly, the Court held that there had been a violation of Article 5 § 1 (b) of the Convention.   The Court made no award under Article 41, as the applicant had not made a claim for just satisfaction, despite being invited to do so. (The judgment is available only in French.)     Violation of Article 8   Violation of Article 1 of Protocol No. 1 Goffi v. Italy (no. 55984/00)   Violation of Article 2 of Protocol No. 4 The applicant, Pierangelo Goffi, is an Italian national who was born in 1954 and lives in Toscolano Maderno (Italy). He was declared bankrupt in May 1989; the proceedings were concluded in December 2002.   The applicant submitted that as a result of the bankruptcy order he had been deprived of his possessions, in breach of Article 1 of Protocol No. 1 (protection of property), correspondence addressed to him had been handed over to the trustee in bankruptcy, in breach of Article 8 (right to respect for correspondence), and that he had been unable to move away from his place of residence, in breach of Article 2 of Protocol   No. 4 (freedom of movement). The Court noted that it had previously found a violation of the Convention in cases that raised similar issues. In the case before it, it found that the 13-and-a-half years the bankruptcy proceedings had taken had upset the fair balance that had to be struck between the general interest in ensuring that the creditors of bankrupts were paid and the individual interest of the applicant in ensuring compliance with his right to the peaceful enjoyment of his possessions, to respect for his correspondence and to freedom of movement. The interference with his rights and freedoms had been disproportionate to the aim pursued. Accordingly, the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1, of Article 8 and of Article 2 of Protocol No. 4.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 29,000 for non-pecuniary damage. (The judgment is available only in French.)     Violation of Article 6 § 1 Sandor v. Romania (no. 67289/01)   Violation of Article 1 of Protocol No. 1 The applicant, Agneta Sandor, is a Romanian national who was born in 1923 and lives in Miske (Hungary).   In 1998 she brought a claim for compensation for the failure to return part of a property which she had owned but which had been nationalised. In a judgment of 3 March 1999, the Hunedoara Court of First Instance ordered the State, represented by the Ministry of Finance, to pay the applicant 21,460,500 Romanian lei (ROL) in damages and a further ROL   1,000,000 for costs. In a final judgment of 1 February 2000, the Alba   Iulia Court of Appeal dismissed an appeal by the Ministry of Finance.   Despite her attempts to secure payment, the applicant has still not received the sums awarded by the Romanian courts.   Relying on Article 6 § 1 (right to a fair hearing) of the Convention, she complained, in particular, that the failure to comply with the judgment ordering the State to pay her compensation had infringed her right of access to a court and also interfered with her right to the peaceful enjoyment of her possessions, in breach of Article 1 of Protocol No. 1 (protection of property).   The Court decided by six votes to one to declare the complaints under Article 6 § 1 and Article 1 of Protocol No 1 admissible.   By refusing to comply with the judgment of 3 March 1999, the Romanian authorities had denied the applicant effective access to a court to have a final court decision in her favour executed. Consequently, the Court held by six votes to one that there had been a violation of Article   6   §   1.   The Court further found that the interference caused by the failure to comply with the judgment was arbitrary and amounted to a breach of the rule of law. It therefore held by six votes to one that there had been a violation of Article 1 of Protocol No. 1 to the Convention.   Under Article 41 (just satisfaction), the Court decided by six votes to one to award the applicant EUR 6,500 for pecuniary and non-pecuniary damage and EUR 160 for costs and expenses.   (The judgment is available only in French.)   Frizen v. Russia (no. 58254/00   Violation of Article 1 of Protocol No. 1 The applicant, Nina Ivanovna Frizen, is a Russian national, born in 1951 and living in Krasnoyarsk.   In 1996, TMS – a company founded by the applicant’s husband – granted her an interest-free loan to buy a car. The total amount was transferred directly to the bank account of the car dealer. In 1998, the applicant’s husband was convicted of large-scale fraud. The court sentenced him to four years’ imprisonment and issued confiscation orders in respect of his property. The applicant’s car and certain household items in her flat were seized.   The applicant complained that her car was confiscated for offences for which she had not been convicted and without any legal basis. She relied on Article 1 of Protocol No. 1 (protection of property).   The Court considered that the existence of public-interest considerations for the forfeiture of the applicant’s vehicle, however relevant or appropriate they might have appeared, did not dispense the domestic authorities from the obligation to cite a legal basis for such decision. It observed that the domestic courts did not refer to any legal provision authorising the forfeiture, either in the criminal proceedings against the applicant’s husband or in the civil proceedings which she initiated. Furthermore, the Russian Government had not invoked, explicitly or by reference, any domestic legal provision on which the decision to confiscate the applicant’s car had been based.   The Court recalled that its power to review compliance with domestic law was limited, as it was in the first place for the national authorities to interpret and apply that law. Therefore, having regard to the Russian authorities’ consistent failure to indicate a legal provision that could be construed as the basis for the forfeiture of the applicant’s property, the Court found the interference with the applicant’s property rights could not be considered “lawful” and held, unanimously, that there had been a violation of Article 1 of Protocol No. 1.   The Court made no award for just satisfaction under Article 41. (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. 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.