CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 28 juin 2005

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(The judgments are only available in French.)   Zedník v. Czech Republic (application no. 74328/01)   Violation of Article 6 §   1 The applicant, Jiří Zedník, is a Czech national who was born in 1950 and lives in Ujkovice (Czech Republic).   In 1999 the Czech social security authorities decided that the applicant would henceforth no longer receive his partial invalidity benefit. That decision having been upheld by the regional court and the Prague High Court, the applicant asked the Constitutional Court to re-examine his case.   On 15 January 2001 the reporting judge at the Constitutional Court sent the applicant a letter informing him that he had not fulfilled the formal requirements for lodging a constitutional complaint. He fixed a thirty-day deadline, to run from the date on which the letter was served, to remedy the shortcomings in the applicant’s complaint, and informed him that, in the absence of such rectification, his complaint could be declared inadmissible on procedural grounds.   On Friday 16 February 2001 the applicant’s lawyer sent a fax to the Constitutional Court in which he provided the additional information required for his client’s complaint, and sent the necessary documents by post on that same date. However, the reporting judge at the Constitutional Court dismissed the appeal as out of time on the ground that he had not received the supplementary information until Monday 19   February 2001.   The applicant complained that he had been deprived of his right of access to a court and considered that the dismissal of his constitutional complaint as out of time was unjustified. He relied on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.   The European Court on Human Rights noted that Law no. 182/1993 on the Constitutional Court specified the day from which the period for applying to it began to run, but contained no specific provision on the end of that period. Article 57   § 3 of the Code of Criminal Procedure, which was applicable subsidiarily, provided that the time-limit was complied with if, on the last day of the period in question, the litigant carried out the act in question at the court or entrusted its delivery to a body which had an obligation to deliver it (such as the post office).   In addition, it appeared from the Constitutional Court’s decisions that it referred to the post office stamp to assess whether the legal deadline for applying to it had been complied with. It was therefore sufficient for the appeal to be posted on the last day of the time-limit. In the absence of a provision to the contrary, the Court considered that the interests of legal certainty required that the end of the time-limit should be assessed by the same method and that the applicant’s complaint should not therefore have been held to be out of time.   In those circumstances, the Court considered that the Constitutional Court’s interpretation of a procedural requirement had prevented an examination of the merits of the applicant’s case, in breach of the right to effective protection by the courts. Accordingly, it concluded, unanimously, that there had been a violation of Article 6 § 1 and awarded the applicant 88   euros   (EUR) for costs and expenses.     Violation of Article 6 §   1 Bach v. France (no. 64460/01) Fourchon v. France (no. 60145/00) The applicants, Laurent Bach and Philippe Fourchon, are French nationals who were born in 1974 and 1953 respectively and live at Lorentzen and Vernouillet (France). Both lodged an appeal on points of law: Mr Bach in the context of criminal proceedings arising from a road accident in which he had been involved, and Mr Fourchon following a complaint lodged by him against his ex-wife for failure to hand over a child.   In both these cases, the applicants complained that the proceedings before the Criminal Division of the Court of Cassation had been unfair as a result of the failure to make available to them the reporting judge’s report and the advocate-general’s submissions had not been made available to them. They relied on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights.   As it had already had occasion to do in a number of similar cases, the Court concluded unanimously in both these cases that there had been a violation of Article 6 § 1 of the Convention on account of the failure to make the reporting judge’s report available to the applicants before the hearing, whereas this document had been provided to the advocate-general. In the case of Bach v. France , the Court also concluded that there had been a violation of Article 6 § 1 on account of the fact that the tenor of the advocate-general’s submissions had not been made available to the applicant, so that it had been impossible for him to reply to them.   Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Bach 1,196   EUR for costs and expenses and considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage he had sustained. As Mr Fourchon had made no claim in respect of just satisfaction, the Court held that it was not necessary to make an award under this head.     No violation of Article 3   No violation of Article 8 Gallico v. Italy (no. 53723/00)   Violation of Article 6 §   1 The applicant, Domenico Gallico, is an Italian national who was born in 1958. He is currently in Spoleto Prison (Italy), where he is serving a life sentence imposed in 1994.   Since 20 July 1992, on the basis of orders by the Minister of Justice, the applicant has been subject to the special prison regime provided for in section 41   bis of the Prison Administration Act, imposing a number of restrictions which did not apply to other prisoners. From July 1992 to December 2001, the Minister of Justice issued a total of 19 decrees of this type against the applicant. The latter challenged some of those orders in the supervisory court, but three of his appeals were declared inadmissible because the period of validity of the contested order had expired and he consequently no longer had an interest in having it examined.   The applicant alleged that application of the regime prescribed by section 41   bis for more than 12 years constituted treatment that was contrary to Article 3 (prohibition of inhuman or degrading treatment or punishment) and had violated Article 8 (right to respect for family and private life). He further alleged that the delay by the Italian courts in ruling on his appeals against the Minister of Justice’s orders had infringed his right to a court as guaranteed by Article 6 § 1 (right to a fair trial) of the Convention.   The Court noted that the arguments adduced to justify the maintenance of the limitations on the applicant’s rights had not been disproportionate to the offences with which he had previously been charged, and that he had received heavy sentences for very serious crimes. That being so, the suffering or humiliation which he might have experienced had not gone beyond that inevitable element of suffering or humiliation connected with a given form of treatment - protracted in this particular case - or legitimate punishment. Moreover, the applicant had not provided the Court with evidence that would have enabled it to conclude that the extension of the restrictions was not manifestly justified in his case. Accordingly, the Court concluded unanimously that there had been no violation of Article 3.   Furthermore, the Court reiterated that it had already ruled that the regime provided for in section 41 bis was compatible with Article 8 of the Convention. It noted in this case that, in justifying the maintenance of the restrictions, the Minister of Justice had referred in each order to any changes in the applicant’s personal circumstances since the previous order. Accordingly, the Court concluded unanimously that there had been no violation of Article 8.   Finally, the Court noted that three of the applicant’s appeals had been declared inadmissible; it was forced to the conclusion that the absence of any decision on the merits of the appeals had nullified the impact of the judicial review of the orders issued by the Minister of Justice. In addition, if the legislation laid down a time-limit of only ten days for adjudication, this was, in the Court’s view, because of the seriousness of the special regime’s impact on prisoners’ rights and because the impugned decision remained valid for only a limited time.   Consequently, the Court considered that the failure of the courts dealing with the case to rule on the applicant’s appeals had infringed his right to have his case heard by a court. Accordingly, it concluded, unanimously, that there had been a violation of Article 6 § 1 and considered that the finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage alleged by the applicant.   Hermi v. Italy (no. 18114/02)   Violation of Article 6 §   1 The applicant, Fausi Hermi, is a Tunisian national who was born in 1969. He is currently in Frosinone Prison (Italy).   The applicant was arrested in 1999 in possession of 485 grams of heroin; criminal proceedings were brought against him for drug trafficking. On 24 March 2000 the preliminary hearing judge sentenced him to six years’ imprisonment and a fine of about EUR   20,658. The applicant appealed against that judgment.   The applicant’s lawyer applied for his client to be released from prison to attend a hearing before the Rome Court of Appeal. That court dismissed the application and, in a judgment of 3 November 2000, upheld the impugned judgment. The applicant appealed unsuccessfully on points of law.   The applicant complained that he had been unable to take part in the hearing before the Rome Court of Appeal. He relied on Article 6 § 1 (right to a fair trial) of the Convention.   The Court reiterated that where an appellate court had to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, it could not determine the issue without a direct assessment of the evidence given in person by the accused. The latter could however waive this right, provided this waiver was not equivocal and did not run counter to any important public interest.   As the Rome Court of Appeal had been required in this case to examine questions of both fact and law and to uphold or quash the applicant’s conviction, the latter was entitled to appear and defend himself before it. The Court noted that, admittedly, the applicant received a notice informing him that it was his responsibility to request his transfer to the hearing, but it had not been translated into one of the languages spoken by the applicant, namely Arabic and French, and it had not been established that he was capable of understanding the meaning of this legal document. In addition, the applicant claimed that he had been taken automatically to the hearing at first instance; he could reasonably have expected that the same thing would occur on appeal.   In the Court’s view, those circumstances taken together raised serious doubts as to the applicant’s understanding of the content of the notice of the date of the hearing and of the possible consequences if he failed to inform the authorities of his wish to attend the trial. In any event, he had expressed, through his lawyer, in a clear and unequivocal manner, his wish to take part in the appeal hearing. In those circumstances, the Court could not conclude that the applicant had waived his right to appear at the hearing. Accordingly, it concluded, by four votes to three, that there had been a violation of Article 6 § 1 and awarded the applicant EUR   1,000 for non-pecuniary damage and EUR   4,000 for costs and expenses.   La Rosa and Alba v. Italy (No. 2) (no. 58274/00)   Struck out The applicants, Mario La Rosa, Vincenzo Alba, Maria La Rosa and Giacomo La Rosa, are Italian nationals who were born in 1925, 1927, 1922 and 1920 respectively. They live in Caltagirone (Italy), with the exception of Giacomo La Rosa who lives in Rome.   The applicants owned a plot of land in Caltagirone. The authorities took possession of the land with a view to expropriation in 1982. The applicants refused the offer of compensation by the local authorities and brought an action for damages in 1987 against the company which had carried out construction work on the land in question. In May 2003, while those proceedings were still pending, the applicants, the local authorities and the company in question signed an agreement by which the applicants accepted the sum of EUR   120,634 and undertook to abandon the pending proceedings and any claims in respect of the dispossession and deprivation of the land.   The applicants complained that their right to peaceful enjoyment of their possessions had been infringed as a result of the lack of compensation for expropriation of their land. They relied on Article 1 of Protocol No. 1 (protection of property) to the Convention.   The Court considered that the settlement entered into by the applicants had had the practical effect of settling to a large extent the claims that they had brought under Article 1 of Protocol No. 1. Having thus reached a friendly settlement to the dispute, they could no longer claim to be victims of the alleged violation. In those circumstances, the Court considered that continued examination of this application could no longer be justified and it decided unanimously to strike the case out of the list.     Violations of Article 6 § 1 Virgil Ionescu v. Romania (no. 53037/99)   Violation of Article 1 of Protocol No. 1 The applicant, Virgil Ionescu, is a Romanian national who was born in 1929 and lives in Bucharest.   Mr Ionescu, who is a former political prisoner, opened a small shop in 1991 to supplement his retirement pension. Shortly after it was opened, the Ministry of Finance’s finance squad fined him for breach of the legal provisions concerning the sale of merchandise and the products on sale were confiscated.   In a judgment of 1 October 1991, the Bucharest Court of First Instance quashed the penalty, which it considered illegal, and ordered that the fine and the confiscated goods be returned to the applicant or, should that not be possible, that he receive the value of those goods, namely a total sum of 29,945   Romanian   lei, or EUR   440. The applicant brought two sets of proceedings in order to obtain execution of this judgment, which had become final, but the courts in question declared his actions out of time.   In the meanwhile, the applicant applied for adjustment of the sum owed to him under the judgment of 1 October 1991 and, in his request instituting proceedings, asked that an expert report be carried out. However, the Romanian courts dismissed his request as being out of time on the ground that the expert report had been requested after the first day of the proceedings.   The applicant complained that the proceedings seeking adjustment of the sum owed to him were unfair, and also alleged a violation of his right of access to a court on account of the failure to execute the final decision in his favour. He further complained of an infringement of his right to peaceful enjoyment of his possessions in connection with the impossibility of enjoying the benefit of the sum legally recognised as being owed to him. He relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   As to the fairness of the adjustment proceedings, the Court noted that the request for an expert opinion had been made in accordance with the relevant provisions of the Code of Civil Procedure. The dismissal of that request as out of time had thus infringed the applicant’s right to a fair hearing. Consequently, the Court concluded unanimously that there had been a violation of Article 6 § 1.   As to the right of access to a court, the Court did not subscribe to the Romanian Government’s view that the applicant had not pursued his second application for enforcement. In fact, he could not be criticised for failing to pursue enforcement of the judgment of 1 October 1991 following the dismissal in 1998 of his request for adjustment of the sum owed to him, by which time high inflation rates meant that it was worth only EUR   2.8, or 157 times less than in 1991. By failing to date, to execute the judgment in question, the national authorities had deprived the applicant of the right of access to a court. Accordingly, the Court concluded unanimously that on that ground there had also been a violation of Article 6 §   1.   Finally, the Court considered that by failing to comply with the final judgment of 1   October   1991, the Romanian authorities had prevented the applicant from enjoying the benefit of the money that he could reasonably have expected to receive following that judgment. Consequently, it concluded unanimously that there had been a violation of Article 1 of Protocol No. 1.   In respect of just satisfaction, the Court awarded the applicant EUR   7,500   for pecuniary and non-pecuniary damage.     Violation of Article 1 of Protocol No. 1 In the following seven cases, the applicants, all Turkish nationals, complained of delays in the payment of compensation owed to them for expropriated property. To date, all of them have received from the Turkish authorities the additional compensation awarded to them by the Turkish courts, with the exception of Mrs Özgür and Mr Turhan. The applicants who have received compensation further alleged that the sums they received did not take into account the true rate of inflation between the time when the amount due to them was fixed and the date of payment and complained of the excessive length of the proceedings in question.   In each case the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 to the Convention (protection of property) and that it was not necessary to examine separately the complaint under Article 6 §   1. Apart from in the case of Özgür and Turhan v. Turkey, the Court also held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants and awarded them under Article 41 the overall sums set out below, expressed in euros.     Non-pecuniary damage Pecuniary damage Costs and expenses   Bekir Yılmaz v. Turkey (no. 28170/02)   -   400   500 Fatime Toprak v. Turkey (no. 28179/02) - 5,000 500 Kaçar v. Turkey (no. 28172/02) - 3,750 500 Mehmet Yiğit v. Turkey (no. 28189/02) - 750 500 Mehmet Yiğit and Others v. Turkey (no. 28175/02) - 4,350 500 Nasan Toprak v. Turkey (no. 28180/02) - 3,700 500 Özgür and Turhan v. Turkey (no. 28512/03) 2,000 13,000 1,000   I.Ö. v. Turkey (no. 36965/97)   Violation of Article 5 § 3 The applicant, I.Ö., is a Turkish national who was born in 1963 and was living in İzmir (Turkey) at the time of the events giving rise to his application.   The applicant was arrested and placed in police custody on 18 December 1996. On 28   December 1996 he was brought before a judge, who ordered that he be placed in pre-trial detention. He was charged with membership of an illegal armed organisation, namely the DHKP/C (Revolutionary Party of the People’s Liberation / Front).   On 29 December 1997 the İzmir State Security Court found him guilty of the charges against him and sentenced him to 12 years and six months’ imprisonment. The Court of Cassation upheld that judgment.   The applicant complained that he had not been brought promptly before a judge or other officer authorised by law to exercise judicial power and had not been tried within a reasonable time or released pending trial. He relied on Article 5 § 3 (right to liberty and security) of the Convention.   The Court declared admissible the complaint that the applicant had not been brought promptly before a judge after his arrest. It declared inadmissible the complaint concerning the length of the pre-trial detention.   The Court had already noted on a number of occasions that the investigation of terrorist offences undoubtedly presented the authorities with special problems. That did not mean, however, that they had carte blanche to arrest suspects and place them in police custody, free from effective control by the domestic courts, whenever they considered that terrorism was involved.   The Court could not accept that it was necessary to detain the applicant for ten days without judicial intervention. Considering that the applicant had not been brought promptly before a judge after his arrest, the Court concluded unanimously that there had been a violation of Article 5 § 3 and awarded the applicant EUR   3,500 for non-pecuniary damage and EUR   1,250 for costs and expenses, less the EUR   630   already paid by way of legal aid by the Council of Europe.     ***   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.