CEDH · PRESS;GENERAL;ENG — 13 octobre 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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sD472578 { width:317.57pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sC6726222 { width:137.43pt; display:inline-block } .sEBFE7A95 { width:102.79pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s76CF415B { page-break-before:always; clear:both } .sA4A474A5 { width:241.58pt; display:inline-block } .s944BDE53 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt } .sAC3342B9 { width:281.57pt; text-indent:0pt; display:inline-block } .s83FAB5E8 { width:56.12pt; display:inline-block } .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 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   541 13.10.2005   Press release issued by the Registrar   Chamber judgments concerning France, Greece, Italy and Russia     The European Court of Human Rights has today notified in writing the following 14 Chamber judgments, none of which is 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 6 § 1 Clinique des Acacias and Others v. France (nos. 65399/01, 65405/01 and 65407/01) The applicants, the Clinique des Acacias, the Polyclinique du parc Rambot, the Clinique Grégoire and the Clinique du Val de Sambre, are private health institutions whose head offices are in France.   At the relevant time they were bound to the health insurance offices by agreements setting out the rates of their services. Those rates were established by a ministerial order, which was superseded by an order of 13 May 1991, then annulled by the Conseil d’Etat in 1994. The order of 1991 introduced a deduction which resulted in the payments from social security offices being reduced by two fifths. That order was superseded and then annulled by the Conseil d’Etat in 1996.   The applicant institutions considered that the deductions had been made illegally by the social security offices and sought the reimbursement of amounts in respect of the period during which the order of 1991 was applicable. The social security offices refused to pay the amounts claimed and on 27 December 1996 a law was enacted by Parliament legalising any implementation of the 13 May 1991 order.   The applicant institutions brought proceedings in particular to seek reimbursement from the health insurance offices of additional operating-theatre expenses. Their claim was dismissed by the Social Security Tribunal and they appealed on a point of law. In judgments of 8 June 2000 the Court of Cassation dismissed their appeals on the ground that there was no regulatory instrument fixing the amount of additional operating-theatre expenses in respect of the period concerned.   The applicants alleged that the fact that the Court of Cassation had itself raised an argument   when dismissing their appeals on a point of law breached their right to a fair hearing as guaranteed by Article 6   §   1 (right to a fair hearing) of the Convention.   The Court noted in that case that the Court of Cassation had exercised its undisputed right to raise a purely legal ground in order to dismiss the applicants’ appeals. The only problem was that such an intention had not been communicated to the applicants.   The argument raised by the applicant institutions before the Court of Cassation was based exclusively on the legalising Act of 1996, which that Court itself had found to be in breach of Article 6 § 1 of the Convention. Their appeals had actually been dismissed on the ground that there was no regulatory instrument fixing the amount of additional operating-theatre expenses in respect of the relevant period. That new ground was based on the implementing provisions of the disputed orders, even though the 1991 order had been annulled by the Conseil d’Etat in 1994 with retrospective effect. The Court considered that, in view of the significance of the claims, the scope of the Conseil d’Etat decisions of 1994 and 1996 was an issue that justified giving the applicants an opportunity to reply to the argument raised by the Court of Cassation prior to its ruling.   As the Court of Cassation had not informed them of its intention to substitute fresh grounds, the applicant institutions were “taken by surprise” and thus deprived of a fair hearing as guaranteed by Article 6 § 1 of the Convention. Accordingly, the Court concluded, unanimously, that there had been a violation of that Article and awarded the applicants, for costs and expenses, 3,946 euros (EUR) in respect of applications 65399/01 and 65405/01 and EUR 1,823 in respect of applications 65406/01 and 65407/01. (The judgment is available only in French.)   Savvas v. Greece (no. 22868/02)   Violation of Article 6 § 1 The applicant, Dimitrios Savvas, is a Greek national.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), the applicant complained of the length of criminal proceedings against him which had ended in 2001 with his being sentenced to more than ten years’ imprisonment for drug trafficking.   The Court observed that the proceedings in question had lasted over five years to date, at two levels of jurisdiction. Having regard to the circumstances of the case, it considered that such a length of time was excessive and did not satisfy the “reasonable time” requirement. The Court accordingly concluded, unanimously, that there had been a violation of Article 6 § 1 of the Convention. As the applicant had not submitted a claim for just satisfaction, the Court considered that it was unnecessary to make any such award. (The judgment is available only in French.)     Bracci v. Italy (no. 36822/02)   Violation of Article 6 §§ 1 and 3 d) The applicant, Antonio Bracci, is an Italian national who was born in 1958 and is now in Viterbo Prison in Italy.   The applicant was arrested by the police on 11 March 1998 on suspicion of having sexually abused two prostitutes, X and Y. At the time of the arrest he was committing armed robbery against another prostitute and two police officers were wounded. Criminal proceedings were brought against him on charges of attempted homicide, resistance to lawful arrest, improper possession of a weapon, rape, assault and wounding, damage to property, illegal confinement and armed robbery.   On 2 November 1998 the Rome Court sentenced the applicant to six years’ imprisonment on charges of, among other things, theft and sexual abuse. In convicting him of sexual abuse, the court referred in particular to the statements given to the police by the two prostitutes, whose testimony had not been heard at the trial because they had not been traced.   The applicant disputed the credibility of the prostitutes’ statements and lodged an appeal. He requested a DNA test on the assailant’s sperm which had been found on X’s skirt. As his appeal was dismissed the applicant lodged an appeal on a point of law, but that was also dismissed on 5 December 2000.   Relying on Article 6 (right to a fair trial) the applicant submitted that the proceedings culminating in his conviction had been unfair, in particular because he had not been able to examine X and Y or have them examined and had been unable to obtain a DNA test.   The Court first reiterated that it was not competent to rule on whether the testimony of witnesses had rightly been admitted in evidence or on whether the applicant was guilty. It then observed that the applicant’s fears that the Italian courts lacked independence and impartiality were based exclusively on the terms of the judicial decisions against him and that they could not therefore be regarded as objectively justified. The Court further noted that the applicant had complained of the quality of the legal assistance given to him by a lawyer of his choosing and that his allegations were thus directed against an individual.   Regarding the inability to examine X and Y or have them examined, the Court noted that they did not appear at the trial but that, in accordance with Article 512 of the Code of Criminal Procedure, their statements to the police were read out and used when the merits of the charges were examined. Accordingly, at no stage in the proceedings was counsel for the defence able to examine or have examined the individuals who were accusing the applicant in connection with the two incidents in question. As far as X was concerned, the Court found that her testimony was corroborated by other evidence. It could not therefore be concluded that the inability to examine her had interfered with the rights of the defence to the point of breaching the Convention.   It was a different matter with regard to Y, as the Italian courts had relied exclusively on her pre-trial statements in convicting the applicant. In those circumstances, it could not be concluded that the applicant had had an adequate and sufficient opportunity to dispute the statements upon which his conviction for assaulting Y was founded. Accordingly the Court concluded, unanimously, that there had been a violation of Article 6 §§ 1 and 3 d) of the Convention.   As to the matter of the DNA test, it was regrettable that such a test was not carried out as its results could either have confirmed the testimony of the injured party or provided the applicant with material evidence in order to undermine the credibility of that testimony. However, the Court could not conclude that there were any special circumstances such as to convince it that the denial of the test was in breach of Article 6 and it accordingly found that there had been no violation of the Convention in that respect.   The Court also concluded that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. It moreover reiterated that when it found that an applicant was convicted by a court that was not independent or impartial within the meaning of Article 6 § 1, the most appropriate form of redress would normally be for the applicant to be given a retrial without delay before an independent and impartial tribunal. (The judgment is available only in French.)   Violation of Article 6 § 1 No violation of Article   2 of Protocol No. 4 Fedorov and Fedorova v. Russia (application no. 31008/02). The applicants, Nikolay Fedorov and Beviya Fedorova, are Russian nationals who were born in 1961 and 1962 respectively and live in Kormilovka, in the Omsk Region of Russia.   The applicants, a married couple, used to live in Kargasok, in the Tomsk Region, where they worked as veterinarians. Mr Fedorov was Head Veterinarian of the Kargasok District.   Criminal proceedings were brought against Mr Fedorov on 26 September 1996 and Ms Fedorova in February 1998 and they were both banned from leaving their place of residence without permission. They were accused of submitting false reports on business trips in order to obtain cash from the veterinary practice where Mr Fedorov was working unlawfully.   On 13 August 2002 the ban on leaving their place of residence without permission was lifted.       On 31 December 2003 Ms Fedorova was acquitted and, on 25 April 2005, the criminal proceedings against Mr Fedorov were discontinued, as the relevant statutory time-limit had expired.   The applicants complained that the criminal proceedings against them had been unreasonably lengthy and about being banned from leaving their place of residence without permission. They contended that they had been denied permission to leave their place of residence on a number of occasions, in particular, to accompany their son to an interview at Omsk University on 12   July   2001. They relied on Article 6 § 1 (right to a fair trial within a reasonable time) and Article 2 of Protocol No. 4 (freedom of movement). They further claimed that the restriction imposed had prevented them from moving house and finding employment in other regions of Russia.   The Court noted that the length of the proceedings lasted eight years, six months and 29 days for Mr Fedorov and approximately six years and two months for Ms Fedorova. The Court further noted that, as from 5 May 1998 – when the Convention entered into force in respect of   Russia – the proceedings concerning each applicant had lasted, respectively, six years, 11 months and 20 days and 5 years, 11 months and 10   days. The Court observed, however, that it might also take into account the period preceding the entry into force of the Convention in Russia.   Having regard to its case-law on the subject, the Court considered that, in the applicants’ case, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. The Court therefore held, unanimously, that there had been a violation of Article 6 § 1.   Concerning Article 2 of Protocol No. 4, the Court was satisfied that banning the applicants from leaving their place of residence without permission was in accordance with the law and that the purpose of the ban was to ensure the applicants’ presence at the place where the investigation was being conducted and at the court hearings. The Court accordingly found that the restriction pursued legitimate aims, in particular, the prevention of crime and the protection of the rights and freedoms of others.   Concerning whether the measure was necessary in a democratic society, the Court noted that it was not in itself questionable that a State might apply various preventive measures restricting the liberty of an accused in order to ensure the efficient conduct of a criminal prosecution. In the Court’s view, an obligation not to leave the area of one’s residence was a minimal restriction on one’s liberty. In addition, the preventive measure was not automatically applied for the whole duration of the criminal proceedings against the applicants. In fact, after it was lifted on 13   August   2002, it was never applied again. The Court concluded that the mere duration of the ban was insufficient for the Court to conclude that it was disproportionate.   In deciding whether a fair balance was struck between the general interest in the proper conduct of the criminal proceedings and the applicants’ personal interest in enjoying freedom of movement, the Court considered whether the applicants actually sought to leave the area of their residence and, if so, whether permission to do so was refused. The parties agreed that Mr Fedorov had twice been given permission to leave the Kargasok District and the applicants did not provide any evidence to show that they had actually applied to the domestic authorities for permission to leave their place of residence on any other occasion. In particular, they did not submit a copy of their application to leave Kargasok in order to accompany their son to Omsk on 12 July 2001. In the absence of any evidence that the applicants had filed any such applications and, consequently, that they had been refused, the Court could not reach the conclusion that a fair balance between the demands of the general interest and the applicants’ rights had been upset. Accordingly, the Court found that the restriction on the applicants’ freedom of movement was not disproportionate. The Court therefore held, unanimously, that there had been no violation of Article 2 of Protocol   No. 4.   The Court awarded Mr Fedorov EUR 3,600   for non-pecuniary damage and Ms Fedorova 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 1 of Protocol No.1 Binotti v. Italy (No. 2) (no. 71603/01) Colacrai v. Italy (No. 1) (no. 63296/00) Colazzo v. Italy (no. 63633/00) Fiore v. Italy (no. 63864/00) La Rosa and Alba v. Italy (No. 4) (no. 63238/00) Maselli v. Italy (no. 63866/00) De Pascale v. Italy (no. 71175/01) Serrao v. Italy (no. 67198/01) In these eight cases the authorities took possession of land belonging to the applicants with a view to expropriating it and began to carry out building work on the different plots. Since no expropriation order was issued and no compensation paid to the applicants, they brought proceedings to obtain damages for the unlawful occupancy of their land.   The applicants submitted that the occupancy of their land had breached their right to peaceful enjoyment of their property under Article 1 of Protocol No. 1 (protection of property). Mrs Binotti also alleged a breach of Article 6 § 1 (access to court).   The Court considered that the loss of possession of the land at issue, combined with the lack of remedies to redress the situation, amounted to de facto expropriation in breach of the applicants’ right to peaceful enjoyment of their property. It accordingly held, unanimously in each of the eight cases, that there had been a violation of Article 1 of Protocol No. 1. It also considered that it was unnecessary to examine separately the complaint submitted by Mrs Binotti under Article 6 § 1. Except in the case of Serrao v. Italy , where the applicant had made no such claim, the Court considered that the question of the application of Article 41 (just satisfaction) was not ready for decision and that it should accordingly be reserved. (The judgments are available only in French.)   Violation Article 6 § 1 Violation Article 1 of Protocol No. 1 Gerasimova v. Russia (no. 24669/02) The applicant, Galina Petrovna Gerasimova, is a Russian national aged 51 and who lives in Chapayevsk (Russia).   On 4 September 1995 the Commercial Court of the Samara Region granted a claim by the applicant’s employer – a private company – for recovery of damages against the Chapayevsk Social Security Service. On 15 August 1997 the applicant’s employer assigned her a part of the judgment debt towards salary due.   In May 1998 the applicant applied to the Chapayevsk Town Court for execution of the judgment. However, the judgment was never fully executed.   The applicant complained about the failure by the State to enforce this judgment. He relied on Article   6 §   1 (right to a fair hearing within a reasonable time) and Article   1 of Protocol No.   1 (protection of property).   Concerning Article 6 § 1, the Court observed that it was not open to a State authority to cite lack of funds as an excuse for not honouring a judgment. The Court noted that the judgment in question was not enforced for several years, a situation for which the Government had not provided any plausible justification. The Court therefore held, unanimously, therefore, that there had been a violation of Article   6 §   1 and Article 1 of Protocol No. 1.   The Court also held that the Government was to secure, by appropriate means, the enforcement of the award made by the domestic court, and, in addition, to pay the applicant EUR 2,400 in respect of non-pecuniary damage. (The judgment is available only in English.)     Violation of Article 6 § 1 Vasilyev v. Russia (no. 66543/01)   Violation of Article 1 of Protocol No.1 The applicant, Petr Fedotovich Vasilyev, is a Russian national, aged 70 who lives in the Orenburg Region (Russia).   In February 1998 the amount of the applicant’s pension was re-assessed according to a new Pensions Law, the Federal Law on Calculating and Upgrading State Pensions. The applicant sued the Sakmarsky District Welfare Office for insufficient increase of his pension. In October 1999 the Sakmarskiy District Court granted the applicant’s claim and increased his pension and the judgment became final. In July 2000 the President of the Orenburg Regional Court lodged an extraordinary appeal against that judgment and the Presidium of the Orenburg Regional Court examined the appeal in the supervisory review procedure. The Presidium annulled the previously awarded increase as well as the arrears.   The applicant complained that the award made in his favour to receive an increased pension and arrears was subsequently quashed by way of supervisory review, which resulted in a decrease of his pension. He relied on Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention and Article 1 of Protocol No. 1 (protection of property).   The Court noted that a final and binding judgment in the applicant’s favour was set aside by a higher court in supervisory review proceedings, following an extraordinary appeal lodged by the President of the Orenburg Regional Court, whose power to make such applications was not subject to any time-limit, so that judgments were liable to challenge indefinitely. As a result, the applicant had had to endure legal uncertainty after the final judgment was quashed. There had therefore been a breach of the principle of legal certainty and of the right to a court in the applicant’s case. The Court therefore held, unanimously, that the setting aside of the judgment in supervisory review proceedings violated Article 6 § 1.   The Court recalled that the sums awarded to the applicant by the judgment in question could be considered a possession. Quashing the judgment after it had become final therefore constituted an interference with the applicant’s right to the peaceful enjoyment of his possession.     There being no public interest defence justifying that interference, the Court also held, unanimously, that there had been a violation of Article 1 of Protocol No 1.   It awarded the applicant EUR   230 for pecuniary damage, EUR   500 for non-pecuniary damage. (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)   Beverley Jacobs (telephone: +00 33 (0)3 90 21 54 21) 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.