CEDH · PRESS;GENERAL;ENG — 1 décembre 2005

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[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 5 §§ 1 and 3   Violations of Article 5 § 4   Violation of Article 6 § 1   Violation of Article 13 Popov v. Bulgaria (application no 48137/99) Emil Ganchev Popov is a Bulgarian national who was born in 1967 and lives in Sofia.   He was arrested on suspicion of having misappropriated funds from a company of which he was an executive director, with aggravating circumstances in view of the amount involved, and was remanded in custody on 28 August 1997.   He lodged five applications for release but each time they were dismissed by the Bulgarian courts in view of the seriousness of the charge and the risks that he might abscond or obstruct the investigation. After one last application, Gabrovo District Court found that the maximum time limit for pre-trial custody had been exceeded and ordered the applicant’s release on bail. He was released on 18 September 1998.   On 30 August 2002 the Prosecutor found that there was no case to answer, as he considered that there was insufficient evidence to prove with certainty that funds had been misappropriated.   The applicant contended in particular that the length of his pre-trial custody had been excessive, that one of his applications for release had not been examined and that the others had not been dealt with speedily. He also argued that his continued detention after the expiry of the statutory time-limit in Bulgaria had been illegal, that the duration of the criminal proceedings had been excessive and that he had not had an effective remedy available. He relied on Article 5 (right to liberty and security), Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy) of the Convention.   The Court noted that the applicant had been held in pre-trial detention for one year and 21 days. As the national authorities had not justified his detention on pertinent and sufficient grounds, the Court held, unanimously, that there had been a violation of Article 5 § 3 as regards the length of the detention.   As for the examination of the applicant’s applications for release, the Court noted that one of them had not been examined on the merits on the ground that “the circumstances had not changed”. By refraining from making even a summary examination of the applicant’s arguments, the domestic court had failed to carry out the scrutiny required by the Convention. The Court accordingly held, unanimously, that there had been a violation of Article 5 § 4.   The Court further considered that the authorities had not acted speedily in dealing with the applicant’s applications, especially in view of the fact that his detention had exceeded the maximum statutory duration. The Court therefore held, unanimously, that there had also been a violation of Article 5 § 4 in that respect.   The Court observed that the applicant had been arrested on 28 August 1997 and that, from 28 August 1998 onwards, his detention exceeded the one-year period allowed by Bulgarian law. It held, unanimously, that there had been a violation of Article 5 § 1 in respect of the applicant’s detention between 28 August and the date of his release, 18 September 1998.   The Court also noted that the criminal proceedings against the applicant had lasted for five years, at the preliminary investigation stage alone. In view of the delays in the proceedings that were attributable to the authorities but for which no explanations had been provided by the Government, the Court held, unanimously, that there had been a violation of Article 6 § 1.   Lastly, as far as the Court was aware, at the material time there were no remedies under Bulgarian law to enable the criminal proceedings to be expedited or the persons concerned to obtain compensation for existing delays. Accordingly, the Court held, unanimously, that there had been a violation of Article 13.   By way of just satisfaction, the Court awarded the applicant 3,500 euros (EUR) in respect of non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1 Tsantiris v. Greece (no. 42320/02)   Violation of Article 13 Nicolaos Tsantiris is a Greek national who was born in 1952 and lives in Athens. He is a fisherman by profession.   In 1984 the Ministry of Agriculture and the European Commission approved the applicant’s request to take part in a scheme for the renovation or replacement of fishing vessels with the help of Greek and European Union grants. However, in 1992, his final request for the payment of the costs incurred in building a new boat was turned down by the European Commission. In 1998 he brought proceedings for an order setting aside the decision to refuse him payment of the grant. The case is currently pending before the Greek courts.   The applicant complained of the length of the proceedings in question and of the lack of any remedy in Greece to address that issue. He also alleged an infringement of his right to the peaceful enjoyment of his possessions. He relied on Article 6 § 1 (right to a fair hearing within a reasonable time), Article 13 (right to an effective remedy) and Article 1 of Protocol No. 1 (protection of property).   The Court declared the application admissible in respect of the complaints under Article 6 § 1 and Article 13, but found the other complaint inadmissible. It noted that the proceedings in question had lasted to date for almost seven years and two months. Under the circumstances of the case, it considered that the proceedings had been excessively long and failed to satisfy the “reasonable time” requirement. Accordingly, the Court held, unanimously, that there had been a violation of Article 6 § 1.   In addition, the Court reiterated its previous finding that the Greek legal system did not provide aggrieved persons with an effective remedy, within the meaning of Article 13 of the Convention, for length-of-proceedings complaints. It therefore held, unanimously, that there had been a violation of Article 13.   By way of just satisfaction, the Court awarded the applicant EUR 8,000 for non-pecuniary damage. (The judgment is available only in French.)   Tuquabo-Tekele and Others v. the Netherlands   Violation of Article 8 The applicants are five Netherlands nationals – Goi Tuquabo-Tekle, Adhanom Ghedlay Subhatu, and Tarreke, Tmnit and Ablel Tuquabo – and one Eritrean national, Mehret Ghedlay Subhatu. Goi Tuquabo-Tekle was born in 1963 and her son Adhanom Ghedlay Subhatu in 1978. Mrs Tuquabo-Tekle’s husband, Tarreke Tuquabo, was born in 1952, and their children Tmnit and Ablel in 1994 and 1995, respectively. Those applicants live in Amsterdam. The applicant Mehret Ghedlay Subhatu – a daughter of Mrs Tuquabo-Tekle – was born on 12   November 1981 and lives in Adi Hanso (Eritrea).   In 1989, during the civil war in Ethiopia, Mrs Tuquabo-Tekle fled to Norway where she was granted a residence permit the following year. Her three children stayed behind in the care of friends and relatives. In 1991 only the eldest son was able to move to Norway. Mrs   Tuquabo-Tekle, however, intended to take the others to Norway later.   In June 1992 Mrs Tuquabo-Tekle married and the following year she and her son moved to the Netherlands to live with her husband. The couple subsequently had two children.   In September 1997 the couple’s request for a provisional residence visa for Mehret was rejected. They lodged an objection with the Minister of Foreign Affairs who also rejected it on the grounds that close family ties between Mrs Tuquabo-Tekle and her daughter had ceased to exist. In particular, the Minister noted that Mrs Tuquabo-Tekle had not acted with expediency, lodging her request for Mehret to be allowed to join her several years after she had been legally resident in the Netherlands.   On appeal, the Regional Court of The Hague found that Article 8 of the Convention did not oblige the State to provide for family reunion on its territory. It further considered that there were no objective reasons why the family members in the Netherlands could not pursue family life with Mehret in Eritrea.   The applicants alleged that the refusal by the Netherlands authorities to allow Mehret Ghedlay Subhatu to reside in the Netherlands breached their right to respect for family life.   They relied on Article 8 (right to respect for private and family life).   The Court held that it was clear from the facts of the case that Mrs Tuquabo-Tekle always intended for Mehret to join her. The Court accepted the fact that she had delayed making an application for family reunion in the Netherlands as she believed, and was advised by her legal representative, that she first had to obtain a passport and suitable accommodation for her daughter.   The Court noted that Mrs Tuquabo-Tekle and her husband had lived in the Netherlands for a number of years and had opted for Netherlands nationality. They also had two children who had only minimal ties to their parents’ country of origin. The Court therefore found that the best way for the applicants to develop family life together was for Mehret to settle in the Netherlands.   The Court held unanimously that there had been a violation of Article 8 and awarded the applicants, jointly, EUR 8,000 for non-pecuniary damage and EUR 1,241.23 (less EUR 701, received by way of legal aid from the Council of Europe) in respect of costs and expenses. (The judgment is available only in English.)   Wróblewski v. Poland (no. 52077/99)   No violation of Article 6 § 1 Ryszard Wróblewski is a Polish national who was born in 1940 and lives in Warsaw.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), the applicant complained about the length of criminal proceedings that had been brought against him for interfering with his former wife’s peaceful enjoyment of her home, which ended with his being acquitted in 1998.   The Court noted that the proceedings in question had lasted for about five years and one month. Taking all the circumstances of the case into account, and in particular the fact that the applicant and the judicial authorities shared equal responsibility for the length of the proceedings, the Court held that there had been no violation of Article 6 § 1. (The judgment is available only in French.)   Ilişescu and Chiforec v. Romania (no. 77364/01)   Violation of Article 6 § 1 The applicants, Ioana Ilişescu and her son Daniel Chiforec, are Romanian nationals who were born in 1950 and 1977 respectively and live in Iaşi (Romania).   Proceedings were brought against them in 1998 on the basis of a criminal complaint for assault with threatening and insulting behaviour. On 17 March 2000, after a hearing in their absence, they were each sentenced by Iaşi Court of First Instance to three months’ imprisonment for assault, and Ms Ilişescu was also ordered to pay a fine for threatening behaviour.   The applicants appealed against that judgment, complaining that they had not been allowed a hearing in person and had not therefore been given the opportunity to prove their innocence. On 30 January 2001 the county court dismissed their appeal as ill-founded.   Relying on Article 6 § 1 (right to a fair hearing), the applicants complained that the proceedings before the court of first instance and the county court were unfair because they had been convicted without being heard in person.   It was not in dispute that the applicants had been convicted by the court of first instance without having been heard in person. The European Court of Human Rights noted that, under the code of criminal procedure, they should have been given a hearing prior to conviction, if the decision was to be valid.   Under the code of criminal procedure, it was possible for the county court to correct the failure to hear the applicants at first instance, either by quashing the judgment and remitting the case to the courts below, or by ruling on the merits of the charges against them. Consequently, the Court considered that a hearing before the appellate court would have given the applicants the opportunity to give their version of events, to give evidence and to examine any witnesses. It therefore held, unanimously, that there had been a violation of Article 6 § 1 and awarded the applicants jointly EUR 3,000 for non-pecuniary damage and EUR 162 for costs and expenses. (The judgment is available only in French.)   Păduraru v. Romania (no. 63252/00)   Violation of Article 1 of Protocol No. 1 Anatol Pǎduraru is a Romanian national who was born in 1922 and lives in Bucharest. His father had owned a building in Bucharest, which was divided into two blocks, A and B, containing three and two flats respectively, and which had been nationalised by the State in 1950, under Decree no. 92/1950.   On 23 February and 17 March 1997, the city council sold to the tenants the two flats in block B and the adjoining land. On 20 March 1997 the applicant brought an action for recovery of possession of the entire property before Bucharest Court of First Instance. In a final judgment of 10 April 1997, the court found that the nationalisation had been unlawful and ordered the State to return the building to the applicant. However, a few days later the City Council sold to the former tenants one of the three flats in block A and the adjoining land.   On 9 March 1999 Bucharest Court of First Instance held that the agreements for the sale of the flats were valid, on the ground that the applicant had failed to prove any bad faith on the part of the parties thereto. The appeals lodged by the applicant against that judgment were dismissed.   The applicant alleged that the sale of his flats to third parties, which had been upheld by a judicial decision and for which he had received no compensation, amounted to a violation of Article 1 of Protocol No. 1 (protection of property).   As for the flat that had been sold in block A, the Court considered that it was not simply a sale of someone else’s property but a sale that had taken place in flagrant disregard of a judicial decision in the applicant’s favour. By selling to a third party the flat that it should have returned to the applicant, the State had deprived him of any possibility to recover his property, which constituted interference with the peaceful enjoyment of his possession. The Court noted, like the court of first instance, that at the time of the sale the State had no title to the flat in question and that such interference had no basis in law. It therefore found that there had been a violation of Article 1 of Protocol No. 1.   As for the sale of the flats in block B, the Court noted that this had taken place before the applicant had brought his action for recovery of possession. It considered, however, that he was the owner of property within the meaning of the Convention, with a pecuniary interest in having that property returned to him.   The Court noted that Romania had failed to fulfil its positive obligation to take timely and consistent action to address the question of general interest raised by the restitution or sale of property transferred to State ownership under nationalisation decrees. The general uncertainty thus created had had repercussions for the applicant, who had been unable to recover possession of any of his property, even though he had a final judgment ordering the State to return it to him. Consequently, the State had failed in its obligation to recognise the applicant’s right to the effective enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1, and had thus failed to strike a fair balance between the requirements of the public interest and the need to protect the applicant’s right to the peaceful enjoyment of his possessions. Accordingly, the Court held, unanimously, that there had been a violation of Article 1 of Protocol No. 1.   The Court considered that the question of the application of Article 41 (just satisfaction) was not ready for decision and should accordingly be reserved. (The judgment is available only in French.)     Violation of Article 6 § 1   Violation of Article 1 of Protocol No. 1 SC Maşinexportimport Industrial Group SA v. Romania (no. 22687/03) The applicant is a Romanian company.   In 1998 the applicant company was one of the bidders in a sale organised by the State Property Fund ( Fondul Proprietăţii de Stat, “the FPS”) of the State’s majority shareholding in the company Maşini Unelte. Its bid was the highest but still fell short of the sale price and the FPS invited the applicant to make a new offer, which it did on 2 June 1998. However, on 18 June 1998, the FPS sold the shares to a different company.   On 10 December 1999 Bucharest Appeal Court granted an application by the applicant company for an order requiring the FPS to enter into an agreement with it for the sale of the shares. That judgment became final but the FPS refused to comply and the applicant company brought a claim for damages. On 31 January 2001 the Bucharest County Court, considering that the only way to have the appeal court judgment enforced was to award the applicant company the value of the majority shareholding, ordered the APAPS ( Autoritatea pentru privatizarea şi administrarea participaţiilor Statului ), formerly the FPS, to pay it 22,279,999,386 Romanian lei (ROL), equivalent to EUR 836,523. The APAPS, which paid that amount to the applicant in November 2001, was also ordered to pay interest.   An application was lodged by the Romanian Procurator-General to have the judgment of 31 January 2001 set aside and this was granted by the Supreme Court, in a judgment of 17 February 2003, on the ground that the applicant company had failed to prove the existence of a loss. The applicant was ordered to repay the amount it had received from the APAPS. Subsequent to the judgment, the applicant’s bank accounts were frozen and proceedings, which are still pending to date, were brought for the attachment of its property.   The applicant company maintained that the overturning of the final judgment of 31 January 2001 was in breach of the principle of legal certainty. It alleged violations of Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property). It also contended that the Supreme Court judgment constituted an infringement of its right to the peaceful enjoyment of its possessions.   The Court noted that in this case the principle of legal certainty had been breached by the intervention of the Procurator-General in civil proceedings to which he was not a party, and by the overturning of a final judgment, which had the authority of res judicata and had, moreover, been executed. It accordingly considered that the setting-aside of the final judgment of 31 January 2001 had breached the applicant company’s right to a fair hearing and held, unanimously, that there had been a violation of Article 6 § 1.   In addition, the Court noted that the applicant company was the owner of property, within the meaning of the Convention, and that the Supreme Court’s judgment had had the effect of depriving it of that property. Even supposing that it could be demonstrated that a public interest had been served by depriving it of its possessions, the Court considered that the fair balance had been upset and that the applicant had borne an individual and excessive burden, since it had been deprived not only of its title to the shares in the company Maşini Unelte but also of any compensation. The Court accordingly held, unanimously, that there had been a violation of Article 1 of Protocol No. 1.   The Court awarded the applicant company EUR 5,000 for non-pecuniary damage (The judgment is available only in French.)     Repetitive cases   In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention:   Subašić v. Croatia (no. 18322/03)   Violation of Article 6 § 1 The applicant, Edhem Subašić, is a national of Bosnia and Herzegovina who was born in 1930 and lives in Sarajevo.   In 1993, the military police seized his car in front of his house in Mala Duba (Croatia). In September 1993, he brought a civil action against the State, which was stayed on 6 November 1999, following the enactment of the 1999 Amendment to the Civil Obligations Act which provided that all proceedings instituted against the State for damage cause by members of the Croatian Army and police in the performance of their official duties during the Homeland War in Croatia were to be stayed. On 31 July 2003 new legislation entered into force. The proceedings are currently pending before Split County Court.   The applicant complained that the enactment of the 1999 amendment violated his right of access to a court and that he did not have an effective remedy. He relied on Articles 6 § 1 (right to a fair hearing) and 13 (right to an effective remedy).   Considering that, following a legislative amendment, the Croatian courts had not determined the applicant’s claim for approximately three years and nine months the Court held unanimously that there had been a violation of Article 6 § 1. The Court considered that it was not necessary to examine the case under Article 13.   The Court awarded the applicant EUR 4,000 for non-pecuniary damage. (The judgment is available only in English.)     Violation of Article 6 § 1 Skachedubova v. Russia (no. 55885/00)   Violation of Article 1 of Protocol No. 1 The applicant, Svetlana Mikhailovna Skachedubova, is a Russian national who was born in 1974 and lives in Salsk (Russia).   In September 1996 the applicant was awarded child allowance by Salsk Social Security Service. Since no payments were ever made, she brought proceedings before Salsk City Court which found in her favour in a judgment which became final on 17 October 1998. The judgment was however not enforced until 10 September 2001 due to the budgetary difficulties faced by Salsk Social Security Service.   In another judgment on 12 September 2002 concerning unpaid child allowance for 1998 and 1999, the court found for the applicant and she was awarded arrears. She received partial payment in August 2003.   The applicant complained about the prolonged non-enforcement of the judgments in her favour in breach of Article 6 § 1 (right to a fair hearing) 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 first judgment in question was not enforced for more than two years and ten months and that the second was executed only in part after a delay of 11 months, a situation for which the Government had not provided any plausible justification. The Court found that by failing for years to comply with enforceable judgments in her favour the domestic authorities prevented her from receiving the money she could reasonably have expected to receive.   The Court held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 and that within three months from the date on which the judgment becomes final, the respondent State should secure, by appropriate means, the enforcement of the award made by the domestic courts. (The judgment is available only in English.)     Violation of Article 6 § 1 Smarygin v. Russia (no. 73203/01)   Violation of Article 1 of Protocol No. 1 The applicant, Oleg Trofimovich Smarygin, is a Russian national who was born in 1931 and lives in the Chita Region (Russia).   In 1973 the applicant, then a miner, was injured at work for which he subsequently claimed compensation. In September 1999 Chernyshevki District Court delivered two final judgments in his favour. The judgments were later quashed upon the appeal of the President of the Chita Regional Court.   The applicant complained that an award made in his favour was subsequently quashed by way of supervisory review. He relied on Article 6 § 1 (right to a fair hearing) 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 application by a public prosecutor, 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 for a long period after the final judgment was quashed. There had therefore been a breach of the principle of legal certainty and of the right of access 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.   The Court held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 and awarded the applicant 40,000 Russian roubles (RUR) (approximately EUR 1,174) in respect of pecuniary damage and EUR 1,000 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.