CEDH · PRESS;GENERAL;ENG — 28 février 2006

.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 } .s9B5E04D2 { width:260.22pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s65487294 { width:46.75pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sCA0B4806 { width:236pt; display:inline-block } .s962B515 { width:69.43pt; display:inline-block } .s57B5528A { width:267.49pt; display:inline-block } .s267B8157 { width:220.81pt; display:inline-block } .s4BAE41EE { font-family:Arial; font-size:11pt } .sE0CBB96D { width:93.48pt; display:inline-block } .s8BE110A6 { width:125.99pt; display:inline-block } .s7B59859F { width:238.25pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sDF26EFCC { width:26.76pt; display:inline-block } .s4F9FA645 { width:60.79pt; display:inline-block } .s31BD2592 { width:95.48pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .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   108 28.2.2006   Press release issued by the Registrar   Chamber judgments concerning the Czech Republic, France, Slovakia, Sweden, Turkey and   Ukraine   The European Court of Human Rights has today notified in writing the following 14 Chamber judgments, none of which is final. [1]   Repetitive cases [2] and one length-of-proceedings case, with the Court’s main finding indicated, can also be found at the end of the press release.     Violation of Article 6 § 1 (fairness) Krasniki v. the Czech Republic (application no 51277/99) Violation of Article 6 § 3 (d) The applicant, Hasan Krasniki, is a citizen of “the former Yugoslav Republic of Macedonia” who was born in 1971 and lives in Skopje.   In September 1997 the applicant was charged with supplying heroin to two individuals who later testified as anonymous witnesses against him. He pleaded not guilty. At the subsequent trial before Teplice District Court the judge heard the testimony of one of the witnesses outside the courtroom and out of sight of the applicant and his counsel. Since attempts to locate the second anonymous witness had failed, her statement was read out in court in her absence.   The court found the applicant guilty of being in possession of, and dealing in illicit substances and sentenced him to two years’ imprisonment and a period of exclusion from the Czech Republic. The court based its finding solely on the testimonies of the two anonymous witnesses. All of the applicant’s further appeals were rejected.   The applicant complained that his conviction had been based exclusively on anonymous witness testimony. He also complained that the judicial proceedings had not adequately guaranteed the necessary safeguards to ensure a fair trial as his counsel had been denied the opportunity either to see the anonymous witnesses during their testimonies or to know who they were. He relied on Article 6 §§ 1 (right to a fair trial within a reasonable time) and 3 (d) (right to obtain attendance and examination of witnesses) of the European Convention on Human Rights.     The Court noted that there was nothing in the case-file to indicate the reasons for taking testimony anonymously and that it therefore could not be established how the investigating officer and the trial judge assessed the reasonableness of the witnesses’ fear of reprisals by the applicant. The regional court also failed to examine the reasons for granting anonymity. The Court was not satisfied that the interest of the witnesses in remaining anonymous could justify limiting the rights of the applicant to such an extent.   The Court observed that the district court based the applicant’s conviction to a decisive extent on the anonymous testimonies and that the regional court’s decision which upheld that judgment was not based on any new evidence from named sources. The Court therefore concluded that the proceedings as a whole were unfair.   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 of the Convention and that the judgment constituted sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. It awarded Mr   Krasniki 2,500 euros (EUR) for costs and expenses. (The judgment is available only in English.)   Plasse-Bauer v. France (no. 21324/02)   Violation of Article 6 § 1 (fairness) The applicant, Michelle Plasse-Bauer, is a French national who was born in 1948 and lives in Montreal (Canada). She is the mother of four children born of her marriage to M.O.   The applicant’s husband, who petitioned for divorce in 1993, was awarded interim parental responsibility of the children. The applicant was not granted access because, among other things, she had been certified medically unfit to take care of the children.   On 4 February 1997 Orleans Court of Appeal pronounced the couple’s divorce, finding that both were at fault. The court awarded the father parental responsibility of the two children who were still minors and gave the applicant a right of access, subject to mediation, namely, at a meeting point designated as La Recampado association in Aix-en-Provence, and in the presence of a third party, on the first and third Saturday of each month from 2 p.m. until 5 p.m.   The applicant saw her youngest daughter only once, on 18 October 1997, in difficult conditions with the child refusing any communication with her mother. Following that incident the child’s father refused to take her to the meeting point. Mrs Plasse-Bauer made an emergency application to the Aix-en-Provence family-affairs judge, who suspended her right of access on 13 March 1998 because it was materially impossible for the association to ensure the presence of a third party while the applicant exercised her right of access.   On several occasions the applicant lodged a criminal complaint against her ex-husband for failure to hand over the children. He was acquitted on 14 November 2000.   Relying on Articles 6 § 1 (right to a fair trial) and 8 (right to respect for private and family life), the applicant complained of the failure to comply with the judgment granting her a right of access in respect of her minor daughter.   The European Court of Human Rights accepted that the applicant’s conduct had not facilitated the social workers’ task. However, although her conduct towards her daughter might have appeared questionable on the one visit that took place, it was not possible to speculate as to the applicant’s chances of rebuilding a relationship with her daughter, particularly if further visits had been organised in accordance with the arrangements stipulated in the judgment of 4 February 1997. Moreover, having regard to the child’s age – 11 years in 1997 – and the disturbed family environment, the passage of time could have had adverse effects on the applicant’s ability to rebuild a relationship with her daughter.   The Court also found that as the Court of Appeal had expressly designated an association as a place where the applicant and her daughter could meet, it was incumbent on the authorities to abide by the arrangements stipulated in the judgment so that the right of access could be exercised. That had not been done, however. In those circumstances the Court held, unanimously, that there had been a breach of Article 6 § 1 and that it was not necessary to examine separately the complaint under Article 8.   The Court awarded the applicant EUR   3,000 for non-pecuniary damage and EUR   4,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 1 of Protocol No. 1 Hellborg v. Sweden (no. 47473/99) Violations of Article 6 § 1 (fairness and length) The applicant, Bengt Hellborg, is a Swedish national who was born in 1940 and lives in Akarp (Sweden).   In 1989, the late father of the applicant applied for a tentative approval ( förhandsbesked ) from the Building Committee of Lund to build a new house on his property. The request was originally refused in August 1991 but granted in April 1992, after the applicant, who by then had inherited the property, appealed. The permit was unconditional and would become definitive provided it was followed up with an application for a building permit within two years. In October 1992 the applicant applied for a building permit.   The area where the property was located was regulated by a property plan. In March 1993, following a suggestion from the Land Survey Department, the Building Committee repealed that plan in order to take into account the tentative approval. The Government quashed that decision after hearing appeals by the owners of two neighbouring properties. The applicant appealed and requested that an oral hearing be held. The Supreme Administrative Court refused his request and upheld the Government’s decision.   In February 1997 the Building Committee rejected his request for a building permit and in March 2000 the County Administrative Board quashed the decision of April 1992 granting the tentative approval. The applicant appealed.   The proceedings came to an end on 15 September 2004 when the Supreme Administrative Court upheld the annulment of the tentative approval and the refusal to grant a building permit.   The applicant alleged that his right to the peaceful enjoyment of his possessions had been violated as he had not been permitted to build on his property. He complained about the length of the proceedings and also about the refusal of the Supreme Administrative Court to hold an oral hearing. He relied on Article   1 of Protocol No. 1 (protection of property) and Article 6 § 1 (right to a fair hearing within a reasonable time).   The Court found that the Building Committee had a statutory obligation under the relevant two-year rule to issue a building permit to the applicant and that its omission to do so was unlawful and, accordingly, held unanimously that there had been a violation of Article 1 of Protocol No. 1. However, the Court found no other failure to comply with the requirements of Article 1 of Protocol No. 1.   The Court considered that the applicant’s appeal to the Supreme Administrative Court could have raised issues of law and, possibly also, of fact of a certain complexity. Furthermore, the Court discerned no exceptional reasons that could justify dispensing with an oral hearing and therefore held unanimously that there had been a violation of Article 6 § 1 on that account.   The Court noted that the proceedings which had begun on 14 August 1991 and ended on 15 September 2004 had lasted thirteen years and one month. Having regard to the circumstances of the case, the Court considered that such a length of time was excessive and failed to satisfy the “reasonable time” requirement. Accordingly, the Court concluded, unanimously, that there had also been a violation of Article 6 § 1 on that account.   The Court awarded Mr Hellborg EUR 25,000 in damages and EUR   17,200 for costs and expenses. (The judgment is available only in English.)   Savinskiy v. Ukraine (no. 6965/02)   Violation of Article 6 § 1 (fairness) The applicant, Andrey Andreyevich Savinskiy, is a Ukrainian national who was born in 1969 and lives in Ponyatovka (Ukraine). He was a customs officer at the Rozdilnyanska Customs Office in the Odessa Region, Ukraine.   On 24 July 2000 the applicant was arrested and charged with the criminal offences of aiding and abetting smuggling and tax evasion, abusing his power as a customs official and fraud. On 6 November 2000 Novozavodsky District Court of Chernigiv fined him and sentenced to three years’ imprisonment for the negligent performance of his professional duties. He was acquitted of the other charges.   The judgment became final.   Two sets of supervisory review procedings were subsequently initiated upon the request of the President of the Chernigiv Regional Court. In the first proceedings, the judgment was challenged on the grounds of an allegedly erroneous qualification of the applicant’s actions and his unreasonable acquittal on certain criminal charges. The Presidium of the Regional Court upheld the charges against him. In the second set of proceedings, the President of the Regional Court, supported by the Presidium, maintained that the courts had not followed the latter’s previous instructions concerning the qualification of the crimes and severity of the sentence to be imposed on the applicant.   In July 2002 the Supreme Court sentenced the applicant to two years’ imprisonment for the negligent performance of his professional duties and acquitted him of the other charges. By the same decision, the applicant was absolved from his sentence under the Amnesty Law of 11 May 2000.   The applicant complained about the re-opening of the criminal case against him under the supervisory review procedure. He relied on Article 6 § 1 (right to a fair trial within a reasonable time).   The Court noted that the grounds for re-opening the proceedings were based neither on new facts, nor on serious procedural defects, but rather on the personal disagreement of the President of the Regional Court with the assessment of the facts and the classification of the applicant’s actions by the lower instances. The Court found that those grounds were insufficient to justify challenging the finality of the judgment.   The Court considered that the State authorities failed to strike a fair balance between the interests of the applicant and the need to ensure the effectiveness of the criminal justice system. Moreover, the manner in which the President and Presidium of the Regional Court insisted on a particular qualification and sentence in the criminal case against the applicant is in itself incompatible with the fair trial guarantees of Article 6 § 1. The Court held unanimously that there had been a violation of that provision. Mr Savinskiy did not submit a claim for just satisfaction and no award was made. (The judgment is available only in English.)     Repetitive cases   Violation of Article 6 § 1 (fairness) André v. France (no. 63313/00) Brenière v. France (no. 62118/00)   Deshayes v. France (no. 1) (no. 66701/01)   In these three cases the applicants are all French nationals . Fernand André was born in 1917 and lives in Martigues (France). Joël Deshayes was born in 1950 and lives in Le Mans (France). Jean-Marie Brenière, who was born in 1944, is currently in Muret Prison (France).   In each of these cases the applicants lodged an appeal with the Court of Cassation in proceedings to which they were parties. Mr André’s appeal related to a property claim; Mr Brenière’s to his conviction for sexual abuse of a minor and Mr Deshayes’s to his complaint of a breach of medical confidentiality.   The applicants complained, among other things, of the unfairness of the proceedings in the Court of Cassation. They all complained that the reporting judge’s report to the Court of Cassation had not been made available to them, whereas it had been sent to the advocate-general. They also complained that the advocate-general’s written submissions had not been made available to them. Mr Deshayes complained further of the advocate-general’s presence at the deliberations of the Court of Cassation. Lastly, Mr André and Mr Deshayes complained of the length of the proceedings in question. They relied in particular on Article 6 (right to a fair trial).   The Court declared the applications partly admissible regarding the complaints under Article 6 and inadmissible as to the remainder.   Referring to its case-law, the Court reiterated that the failure to make the reporting judge’s report available to the applicant or his lawyer prior to the hearing, whereas it had been sent to the advocate-general, created an imbalance that was incompatible with the requirements of a fair trial. Accordingly, the Court held unanimously in the three cases that there had been a breach of Article 6 § 1 in that respect. It found, additionally, that there had been a breach of Article 6 § 1 in the case of Deshayes v. France on account of the advocate-general’s presence at the deliberations of the Court of Cassation.   The Court considered that the finding of a violation constituted in itself just satisfaction for the non-pecuniary damage sustained by Mr Brenière and Mr Deshayes and awarded them EUR   500 each for costs and expenses. As Mr André had not made any claim for just satisfaction in respect of non-pecuniary damage or costs and expenses, the Court saw no reason to make an award under that head. (The judgments are available only in French.)   Tosun v. Turkey (no. 4124/02)   Violation of Article 6 § 1 (fairness) The applicant, Zeynep Tosun, is a Turkish national who was born in 1973 and lives in Istanbul. In 1999 she was the editor of the daily Özgür Bakış .   In November 1999 Istanbul National Security Court sentenced the applicant to four years and six months’ imprisonment, which was subsequently commuted to a fine, for publishing an article entitled “The member of the PKK presidential council Cemil Bayık: in Turkey the majority are in favour of a solution”.     Ms Tosun appealed to the Court of Cassation. The submissions of Principal State Counsel at the Court of Cassation, in which he addressed the merits of the appeal and concluded that the judgment appealed against should be upheld, were not communicated to the applicant. On 20   September 2000 the Court of Cassation upheld the judgment.   Relying on Article 6 § 1 (right to a fair trial), the applicant complained of the unfairness of the proceedings in the Court of Cassation, which had, she argued, resulted in her inability to reply to the Principal Public Prosecutor’s opinion.   The Court referred to its finding in previous cases that the non-communication of Principal State Counsel’s opinion, in view of the nature of his submissions and of the defendant’s inability to make written observations in reply, entailed a breach of Article 6 § 1. Seeing no reason to depart from that conclusion in the present case, the Court held, unanimously, that there had been a violation of Article 6 § 1. As the applicant had not made any claim for just satisfaction within the time allowed, the Court saw no reason to make an award under that head. (The judgment is available only in French.)   Violation of Article 6 § 1 (fairness) Violation of Article 1 of Protocol No. 1 Berestovyy v. Ukraine (n° 35132/02)   Violation of Article 13     Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Gaponenko v. Ukraine (n° 9254/03) Komar and Others v. Ukraine (nos. 14811/03, 26867/03, 37203/03, 38754/03 et 1181/04)     Violation of Article 6 § 1 (fairness) Glova and Bregin v. Ukraine (nos. 4292/04 et 4347/04)   Violation of Article 13     Shchukin v. Ukraine (no. 16329/03)   Violation of Article 6 § 1 (fairness)   The applicants all complained about the lengthy failure to enforce various judgments awarding them compensation. They all relied on Article   6 §   1 (access to court). With the exception of Glova and Bregin and Shchukin , the applicants also relied on Article   1 of Protocol No.   1 (protection of property). Berestovyy , Glova and Bregin and Shchukin further relied on Article 13 (right to an effective remedy).   In the case of Komar and Others , the Court declared inadmissible the complaint of six of the applicants under Article   2   § 1 (right to life) and the complaint of four under Article 4 § 1 (prohibition of slavery or servitude).   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. It also noted that the judgments in question were not enforced for years, a situation for which the Government had not provided any plausible justification. The Court therefore held unanimously that there had been a violation of Article 6 § 1 in each case and Article 1 of Protocol No. 1 where that Article was invoked. The Court also held that the judgment debts should be paid in the cases Gaponenko , Glova and Bregin and Shchukin .   In the cases of Berestovyy and Glova and Bregin the Court also found that there was no effective remedy available to redress the damage created by the delay in the enforcement of the judgment in question which was caused by the authorities’ failure to take the necessary legislative or budgetary measures and held unanimously that there had been a violation of Article 13.   The Court awarded Mr Gaponenko EUR 2,000, Ms Glova EUR 452 and Ms Bregin EUR 305 for non-pecuniary damage. Mr Shchukin was awarded EUR 1,800 for non-pecuniary damage and EUR 50 for costs and expenses and the applicants in Komar and Others were awarded a total of EUR 9,000 for non-pecuniary damage and costs and expenses.   The Court dismissed the applicant’s claim for just satisfaction in the case of Berestovyy . (The judgments are available only in English.)     Length-of-proceedings case   In the following case, the applicant complained of the excessive length of civil proceedings.   Jakub v. Slovakia (no. 2015/02)   Violation of Article 6 § 1 (length) The Court awarded:   For non-pecuniary damage: EUR 2,400   For costs and expenses: EUR 250   ***   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. [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. [2] In which the Court has reached the same findings as in similar cases raising the same issues under the European Convention on Human Rights.