CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 9 juin 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 } .sBB9EE52A { font-family:Arial } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .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 } .s7B59859F { width:238.25pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s672BE378 { width:310.89pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .s73E9FC7D { width:453.6pt; display:inline-block } .s91A29259 { width:257.55pt; display:inline-block } .sBACF00F2 { width:294.83pt; display:inline-block } .s116972D3 { width:191.5pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s1A901D04 { width:47.48pt; display:inline-block } .sD472578 { width:317.57pt; display:inline-block } .sD479557A { width:330.91pt; display:inline-block } .sE18268F5 { width:160.83pt; display:inline-block } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   315 9.6.2005   Press release issued by the Registrar   Chamber judgments concerning Bulgaria, Greece, Italy and Russia   The European Court of Human Rights has today notified in writing the following 10 Chamber judgments, none of which are final. [1]   Repetitive cases (in which the Court has reached the same findings as in similar cases raising the same issues under the European Convention on Human Rights) can be found at the end of this press release.     Violation of Article 1 of Protocol No. 1 Kirilova and Others v. Bulgaria (nos. 42908/98, 44038/98, 44816/98 and 7319/02) The applicants, Daniela Evgenieva Kirilova, Kamen Ivanov Kirilov,   Milena Ivanova Schneider, Slave Ivanov Ilchev, Elisaveta Danailova Metodieva, Teodora Alexandrova Shoileva-Stambolova and Stefan Alexandrov Shoilev, are Bulgarian nationals, born in 1937, 1961, 1966, 1958, 1930, 1964 and 1968 respectively. Daniela Evgenieva Kirilova died on 2 January 2001; the other applicants all live in Sofia, apart from Mr Kirilov who lives in Brunn am Gebirge, Austria, and Ms Schneider, who lives in Kaltenleutgeben, Austria.   All the applicants – or their ancestors – owned real estate which was expropriated during the 1980s or the early 1990s. At the time of the expropriations they were awarded compensation in the form of flats which the authorities undertook to build, but which, to date, had not been finished or handed over to the applicants (except in the case of Ms Shoileva ‑ Stambolova and Mr Shoilev).   The applicants complained that they had not received compensation awarded to them for expropriated property. They relied on Article 1 of Protocol No. 1 (protection of property) and Article 13 (right to an effective remedy) of the European Convention on Human Rights.   The Court found that the applicants could claim to be entitled to receive from the authorities the flats awarded to them and that Article 1 of Protocol No. 1 was applicable.   The Court noted that, for periods ranging from 15 to 22 years, the applicants – with the exception of Ms Shoileva-Stambolova and Mr Shoilev – had not been compensated for the expropriation of their or their ancestors’ properties. The authorities were – and still are – under an obligation to provide them with the flats offered in compensation. However, in each of the applicants’ cases the authorities ignored the problem and persistently resisted the applicants’ attempts to compel them to fulfil their obligation.     In that connection, the Court noted that all applicants tried various administrative and judicial avenues to obtain redress for the situation in which they had remained for many years.   The Court considered that it was incumbent on the authorities to act in good time, in an appropriate and consistent manner. They were under an obligation to cooperate with the applicants in finding an appropriate solution for the problem. Instead, while never denying that they were bound to build and deliver the flats, they proved reluctant to assist the applicants and even chose, for many years, to actively oppose their various attempts to seek redress. Such an approach could not be considered compatible with the State’s obligations under Article 1 of Protocol No. 1. Furthermore, the Court considered that the alleged lack of funds available to construct the flats could not justify the lengthy delays in the applicants’ cases.   Some of the applicants were temporarily housed in municipal flats. However, the fact remained that, for many years, they were faced with uncertainty. Taking into account that uncertainty, coupled with the lack of effective domestic remedies for rectifying the situation and the reluctance – even active resistance – of the competent authorities to provide a solution to the applicants’ problem for such a long time, the Court held, unanimously, that there had been a violation of Article 1 of Protocol No. 1. The Court also held, unanimously, that it was unnecessary to examine separately the complaint under Article 13. The Court awarded a total of EUR   6,985 in respect of costs and expenses to be paid to the applicants and their lawyers, and held that the question of the application of Article 41 was not ready for decision concerning pecuniary and non-pecuniary damage. (The judgment is available only in English.)     Violations of Article 6 § 1 Castren-Niniou v. Greece (no. 43837/02) The applicant, Cecilia Castren-Niniou, is a Greek national who was born in 1953 and lives in Rhodes (Greece). She works as a dentist in Rhodes Hospital.   In 1990 the applicant obtained a promotion within the hospital; this was overturned following objections by another candidate, who was subsequently appointed to the post in question by the evaluation board. Ruling on an application by the applicant to have that decision set aside, the Supreme Administrative Court, in a judgment of 5 October 1995, ordered that the case be sent back to the authorities for reconsideration. They again decided to promote the applicant’s rival.   Ms Castren-Niniou brought a new application to have the decision set aside, which was granted on 8 May 2001 by the Chania Administrative Court of Appeal. The court held that she ought to have received the promotion in question. In spite of that judgment, the authorities again decided to promote the rival candidate. The applicant brought another application to have the decision set aside; those proceedings are still pending before the Greek courts.     The applicant alleged that the authorities’ refusal to comply with the judgments of the Supreme Administrative Court and the Chania Administrative Court of Appeal had infringed her right of access to a court. She also complained about the length of the proceedings at issue and claimed that she had not had an effective remedy to defend her rights. Finally, she alleged that the fact of having to return the sums received under her new salary had infringed her right to peaceful enjoyment of her possessions. She relied on Article 6 § 1 (right to a fair hearing in a reasonable time) and Article 13 (right to an effective remedy) of the Convention and Article 1 of Protocol No. 1 (protection of property).   The Court declared the application admissible with respect to the complaints made under Article 6 § 1 and Article 13 and inadmissible in respect of Article 1 of Protocol No. 1.   The Court considered that the applicant could not complain about the failure to execute the judgment given by the Supreme Administrative Court, which had overturned the contested administrative decision for insufficient reasoning and returned the case to the authorities for reconsideration without inviting them to offer her the post she sought. On the other hand, although the Chania Administrative Court of Appeal explicitly recognised the applicant’s right to be appointed to the disputed post, the authorities offered the post to her rival, thereby demonstrating a clear intention not to take account of a decision given by a competent domestic court.   In those circumstances, the Court concluded unanimously that there had been a violation of Article 6 § 1 with regard to the right of access to a tribunal and, having regard to that conclusion, did not consider it necessary to examine the complaint made under Article 13.   As to the length of the proceedings in issue, the Court noted that they had lasted ten years, one month and six days for four levels of jurisdiction. Having regard to the circumstances of the case, it considered that such a length did not satisfy the “reasonable time” requirement and consequently held that there had been a violation of Article 6 § 1 on that ground also.   Under Article 41 (just satisfaction), the Court awarded the applicant 10,000 euros (EUR) for non-pecuniary damage. (The judgment is available only in French.)       Violation of Article 5 §§ 1 (c), 4 & 5 Picaro v. Italy (no. 42644/02)   The applicant, Bartolomeo Picaro, is an Italian national who was born in 1959.   The applicant was arrested on 13 April 1999 on suspicion of carrying a prohibited weapon, handling stolen goods and conspiracy to carry out a number of fraud offences. Initially placed in pre-trial detention, he was released in April 1999 before being placed in pre-trial detention again on 29 November 1999. In the meantime, other criminal proceedings were brought against him in the context of fraud against the National Institute for Social Security, and on 9   July 1999 he was placed under house arrest in connection with those charges. He appealed unsuccessfully on points of law against the compulsory residence order.   The Salerno court initially took the view that that the offences underlying the two sets of proceedings were not the same but that there was a connection between them. It subsequently decided that the two sets of proceedings were the same and, in application of Article 297 § 2 of the Code of Criminal Procedure, which provides that pre-trial detention during the preliminary investigation phase may not exceed six months, issued an order on 2 February 2000 for the applicant’s release.   The applicant was released from Salerno Prison on 3 February 2000 at 4.50 pm. At the close of the first set of criminal proceedings against him, Mr Picaro was convicted and given a suspended sentence of one year and eight months’ imprisonment.   The applicant complained of the unlawfulness of the pre-trial detention in which he had been held from 9 January to 2 February 2000 and of the delay in executing the order for his release. Furthermore, he alleged that the Court of Cassation had not decided “speedily” on the lawfulness of his detention and complained that the Italian legal system did not give him an enforceable right to compensation for the alleged violations. He relied on Article 5 §§ 1 (c), 4 and 5.   The Court noted that the decision to release the applicant was taken only on 2 February 2000, when he had already spent 24 days in detention that was not in conformity with national law, and that the decision was too late, given that the length of detention was already greater than that provided for by law. Consequently, the Court concluded unanimously that there had been a violation of Article 5 § 1 (c). As to the time taken to execute the discharge order, the Court considered that the administrative formalities in connection with execution of the order had been carried out rapidly. In consequence, it concluded unanimously that there had been no violation of Article 5 § 1 (c) in respect of this aspect of the complaint.   Furthermore, the Court noted that the Court of Cassation had taken five months and 20 days to decide on and dismiss an appeal by the applicant against the compulsory residence order. Having regard to the circumstances of the case, it held that such a period was excessive and accordingly concluded that there had been a violation of Article 5 § 4.   Finally, the Court noted that there was no procedure available to the applicant for obtaining, with a sufficient degree of certainty, compensation for the violations of Article 5 §§ 1 and 4. It thus held unanimously that there had been a violation of Article 5 § 5.   Under Article 41 (just satisfaction), the Court awarded Mr Picaro EUR 7,000 for non-pecuniary damage and EUR 4,000 for costs and expenses. (The judgment is available only in French.)   R.R. v. Italy (no. 42191/02)   Violation of Article 6 The applicant is an Italian national who was born in 1947 and lives in Bordeaux (France).   In 1992 the applicant left his matrimonial home in Italy, abandoning his wife and four children, and set up home in France. At his spouse’s request, judicial separation was pronounced in 1995 and the applicant was ordered to make maintenance payments to her.   As the maintenance payments were not made, the applicant’s spouse lodged a complaint alleging failure to fulfil the obligation to pay family maintenance. The applicant was committed for trial and declared untraceable. On 28 February 2000 the Foggia Magistrates’ Court imposed a suspended sentence of six months’ imprisonment, on the ground that he had left the marital home without good cause, thus depriving his wife and children of their means of subsistence.   Ruling on an appeal lodged by the prosecution service, the Bari Court of Appeal granted the General Prosecutor’s appeal in a judgment of 11 January 2002 after declaring the applicant in absentia , and added a fine of EUR 309.87 to the prison sentence imposed at first instance.   The applicant complained under Article 6 (right to a fair hearing) that he had been convicted in absentia , without being given any opportunity to defend himself in person and to set out his version of the facts before the Italian courts. In addition, he considered that his conviction in absentia had infringed his right of appeal in criminal matters, in violation of Article 2 of Protocol No. 7 to the Convention.   The Italian authorities had considered that the applicant had waived his right to appear at the hearing since he had moved abroad. Yet there was no evidence that he had been aware of the proceedings brought against him or of the date of his trial. In the absence of any evidence of official notification, the Court could not conclude that the applicant had waived in an unequivocal manner his right to attend the hearing.     As to the Italian Government’s argument that a person who had been convicted in his or her absence could, under Article 175 of the Code of Criminal Procedure (CCP), submit a request for an extension of the time for appealing together with evidence that he or she had been unaware of the proceedings, the Court reiterated that it had already taken the view that such an approach had little prospects of success. Moreover, even assuming that a convicted person proved that he had not intended to evade justice, the Court considered that the measure described in Article 175 of the CCP did not confer on the accused an unconditional right to leave to bring an appeal out of time.   The Court reiterated that a convicted person who could not be considered to have waived in an unequivocal manner his or her right to appear must, in all circumstances, be able to obtain a fresh determination of the merits of the accusation against him or her. The mere possibility that an accused had waived his or her rights, which would be dependent on the evidence that the prosecution service or the convicted person could submit with regard to the circumstances of the finding of evasion, could not meet the requirements of Article 6 of the Convention. It resulted that the measure provided for in Article 175 of the CCP did not secure to the applicant, with a sufficient degree of certainty, the opportunity to be present and to defend himself at a retrial.   Consequently, the measures put in place by the Italian authorities had not made it possible to achieve the result required by Article 6 of the Convention and the Court therefore concluded unanimously that there had been a violation of that provision. Having regard to that conclusion, the Court considered unanimously that it was not necessary to examine the complaint under Article 2 of Protocol No. 7 to the Convention.   Following legislative reform in Italy, as a result of which the period for appealing against a judgment delivered in absentia may be reopened at the convicted person’s request, the Court did not consider it necessary to indicate the general measures which were to be taken to execute this judgment. In addition, it held unanimously that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. (The judgment is available only in French.)   Baklanov v. Russia (no. 68443/01)   Violation of Article 1 of Protocol No. 1 The applicant, Viktor Mikhaylovich Baklanov, is a Latvian national born in 1957 and living in Riga.   On 20 March 1997 the applicant withdrew from his bank accounts 250,000 US dollars in cash and asked his acquaintance, B., to deliver the money to Moscow. B. arrived at Sheremetyevo-1 Airport later the same day. He failed to declare the money at the customs checkpoint and was charged with smuggling.   On 13 September 2000 B. was found guilty of smuggling under Article 188-1 of the Criminal Code and sentenced to two years’ suspended imprisonment. The money was confiscated.     The applicant alleged that he was deprived of his money by a judgment which contained no legal grounds for the forfeiture, relying on Article 1 of Protocol No. 1 (protection of property).   The European Court of Human Rights noted 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. However, the Court considered that the law in question was not formulated with such precision as to enable the applicant to foresee, to a degree that was reasonable in the circumstances, the consequences of his actions. It followed that the interference with the applicant’s property could not be considered lawful within the meaning of Article 1 of Protocol No. 1. The Court therefore held, by six votes to one, that there had been a violation of Article 1 of Protocol No. 1 and awarded the applicant EUR   3,000 for non-pecuniary damage. (The judgment is available only in English.)   Repetitive Cases   In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention:   Violation of Article 6 § 1   Violation of Article 13 Aggelopoulos v. Greece (no. 43848/02) Charalambos Karagiannis v. Greece (no. 21276/03) Fraggalexi v. Greece (no. 18830/03) Kaskaniotis and Others v. Greece (no. 21279/03) Andreas Aggelopoulos, Charalambos Karagiannis and Despina Fraggalexi are Greek nationals who were born in 1932, 1935 and 1943 respectively and live in Athens. Eleftherios Kaskaniotis, Georgios Issaris, Argyris Zilos and Andreas Kokkinos are Greek nationals who were born in 1930, 1932, 1933 and 1934 respectively and who live in Keratsini, Piraeus, Larissa and Farsala Larissas (Greece).   In the four Greek cases listed above, the applicants complained of the length of administrative proceedings which had been brought in order to obtain compensation or interest in connection with an allowance they had been awarded. They relied on Article 6   §   1 (right to a fair hearing in a reasonable time) and Article 13 (right to an effective remedy).   In each of those cases, the Court concluded unanimously that there had been a violation of Article 6 § 1 and Article 13 of the Convention. Under Article 41 (just satisfaction), the Court awarded EUR 1,000 to   Andreas Aggelopoulos , EUR 1,500 to Charalambos Karagiannis, EUR 2,500 to Despina Fraggalexi and EUR 6,000 jointly to the applicants in the case Kaskaniotis and Others v. Greece for non-pecuniary damage . In addition, in each of those cases, the Court awarded the applicants EUR 500 for costs and expenses. (The judgments are available only in French.)   Violation of Article 6 § 1 Kuzin v. Russia (no. 22118/02)   Violation of Article 13 The applicant, Sergey Kuzin, is a Russian national, born in 1960 and living in Moscow.   He complained about the length of proceedings concerning recognition of copyright and damages and about the refusal to allow him to study case files in unrelated proceedings. He relied on Article 6 § 1 (right to a fair trial within a reasonable time), Article 9 (freedom of thought and conscience), Article 10   (freedom of expression) and Article 13 (right to an effective remedy).   The Court held unanimously there had been a violation of Article 6 § 1 in respect of the first set of proceedings and that there had also been a violation of Article 13, in that no remedy was available in Russia which would have enabled the applicant to enforce his right to a hearing within a reasonable time. His other complaints were declared inadmissible. The Court awarded the applicant EUR 3,000 for non-pecuniary damage and EUR 200 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.