CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 15 juin 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 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s9B5E04D2 { width:260.22pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7B59859F { width:238.25pt; display:inline-block } .s3FCDD742 { width:101.44pt; display:inline-block } .s3B68CCD4 { width:45.5pt; display:inline-block } .s5CD26361 { font-family:Arial; color:#008000 } .sC0C74E72 { width:78.79pt; display:inline-block } .sDF5FDB54 { width:33.44pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s955AA009 { width:270.25pt; display:inline-block } .sD479557A { width:330.91pt; display:inline-block } .s4EEBAA9C { width:281.49pt; display:inline-block } .sC841A6B0 { width:234.18pt; display:inline-block } .s3C601D21 { width:253.47pt; display:inline-block } .s758CDE4 { width:276.17pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s97C4B4C1 { width:44pt; 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   349 15.6.2006   Press release issued by the Registrar   Chamber judgments concerning Bulgaria, Croatia, Italy, Latvia, Romania, Russia, Spain, Slovenia, “the Former Yugoslav Republic of Macedonia” and   Ukraine   The European Court of Human Rights has today notified in writing the following 16   Chamber judgments, none of which are final [1] .   Repetitive cases [2] and length-of-proceedings cases, with the Court’s main finding indicated, can also be found at the end of the press release.       Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Zlínsat, Spol. S R.o. v. Bulgaria (application no 57785/00) The applicant, Zlínsat, spol. s r.o., is a limited liability company incorporated under Czech law whose registered office is in Fryšták (Czech Republic).   On 10 May 1997 the applicant company entered into a privatisation contract to buy a hotel being sold by Sofia City Council. The applicant company was the only company to submit a bid.   On 7 July 1997 the Sofia City Prosecutor’s Office ordered the suspension of the contract. It reasoned that the privatisation procedure had breached the Transformation and Privatisation of State and Municipally-Owned Enterprises Act of 1992. In particular it noted that certain interested parties had not been properly notified of the privatisation terms and the valuation of the property had been conducted under circumstances which called into question the objectivity of the officials involved.   The mayor of Sofia appealed to the Chief Prosecutor’s Office, arguing that the contract could only be set aside by a court. The mayor’s appeals were rejected. The applicant company was not informed of any of those events.   In the meantime, the council handed possession of the hotel over to the applicant company and ordered that all prior leaseholders be removed from the hotel premises.   The Prosecutor’s Office, considering that the council was in serious breach of the law, ordered the police to evict the company from the hotel and seize its paperwork. The applicant company learned of that decision on 6 October 1997, when the police arrived at the hotel to enforce the decision.   The council appealed to the Chief Prosecutor’s Office, arguing that the decision had been unlawful, as the applicant company was the rightful owner of the hotel and there were no legal grounds for its eviction. The appeal was dismissed.   Meanwhile, in September 1997, the Prosecutor’s Office brought a civil action against the council and the applicant company seeking the annulment of the contract arguing that it had been entered into under manifestly disadvantageous conditions to the State. The action was dismissed by the City Court in a judgment on 3 April 1998. The Prosecutor’s Office appeals were finally rejected by the Supreme Court of Cassation.   While those appeal proceedings were pending, the applicant company appealed to the Sofia Appellate Prosecutor’s Office against the Prosecutor’s Office decisions of 7 July and 2 October 1997. The company was informed that the decisions had already been unsuccessfully appealed before the Chief Prosecutor’s Office and it had therefore no competence to examine them.   In December 1997 the council made a request to the City Court for a declaratory judgment to the effect that the Prosecutor’s Office had exceeded its legal powers and that its decisions had been made without any legal basis and were therefore null and void. The court rejected that request as inadmissible and added that it had no jurisdiction to rule on the lawfulness of prosecutors’ decisions and actions in civil proceedings.   In August 1999 the applicant company applied unsuccessfully to the Prosecutor’s Office, asking it to rescind its decisions of 7 July and 2 October 1997.   In October 1999, the Prosecutor’s Office notified the police that, following the Supreme Court of Cassation’s judgment, the decisions of 7 July and 2 October 1997 were no longer enforceable.   The applicant company complained that the prosecutors’ decisions interfering with its right to use its possessions could not be reviewed by a court. It also complained that the order to suspend the performance of the privatisation contract and its eviction from the hotel had been unlawful. It relied on Articles 6 § 1 (right to a fair hearing within a reasonable time) 13 (right to an effective remedy) and Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights.   The Court found that the Prosecutor’s Office lacked the guarantees of judicial procedure expected of an independent and impartial tribunal. In particular, it noted that whereas a tribunal normally only dealt with matters referred to it by another person or entity, the Sofia City Prosecutor’s Office acted on its own initiative. The law made no provision for the holding of hearings and did not lay down any rules on such matters as the admissibility of evidence or the manner in which the proceedings were to be conducted. The Sofia City Prosecutor’s Office enjoyed considerable latitude in determining what course of action to pursue, which, according to the Court, did not appear compatible with the notions of the rule of law and legal certainty inherent in judicial proceedings. While it was true that appeals could be made against those decisions to the higher levels of the Prosecutor’s Office, they were the hierarchical superiors of the Sofia City Prosecutor’s Office and part and parcel of the same centralised system under the overall authority of the Chief Prosecutor. Moreover, the appeals procedure was not attended by due procedural safeguards.   The Court concluded that the various prosecutor’s offices could not be regarded as independent and impartial tribunals within the meaning of Article 6 § 1. The prosecutors’ decisions therefore should have been subject to review by a judicial body having full jurisdiction. However, the Court noted that domestic law excluded judicial review of prosecutors’ decisions made under the provisions on which they relied in the applicant company’s case.   The Court therefore found that the prosecutors’ decisions were not subject to the judicial scrutiny required by Article 6 § 1 and held unanimously that there had been a violation of Article 6 § 1.   In view of that finding, the Court held, by six votes to one, that it was unnecessary to rule on the applicant company’s complaints under Article 13.   The Court found that the statutory provisions relied on by the Sofia City Prosecutor’s Office to order the suspension of the contract and to evict the applicant company from the hotel were drafted in particularly vague terms. That made it almost impossible to foresee under what conditions the prosecutors would choose to act, and what measures they would take in the event they considered, without independent control, that an offence might be committed. In addition, there was no reported case ‑ law interpreting and clarifying the exact import of the provisions at issue. As a result, those rules served as a catchall, giving the Prosecutor’s Office unfettered discretion to act in any manner it saw fit, which might in some cases have serious and far ‑ reaching consequences for the rights of private individuals and entities. That discretion and the concomitant lack of adequate procedural safeguards and the resulting obscurity and uncertainty surrounding the powers of the Prosecutor’s Office in that domain, led the Court to conclude that the minimum degree of legal protection to which individuals and legal entities were entitled under the rule of law in a democratic society was lacking. The Court therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1.   The Court held unanimously that the question of the application of Article 41 was not ready for decision, and awarded the applicant company 2,400 euros (EUR) in respect of costs and expenses. (The judgment is available only in English.)   Jurjevs v. Latvia (no. 70923/01)   Violation of Article 5 §§ 1 and 4 The applicant, Jurijs Jurjevs, is a Latvian national who was born in 1956 and is currently imprisoned in Riga (Latvia).   The applicant was arrested and placed in pre-trial detention in August 1999 on suspicion of having created pornographic images representing minors and of having published images on the Internet showing acts of bestiality, paedophilia and sexual abuse. Other charges concerning sexual offences were also brought against him. On 5 January 2001 the preliminary investigation was closed and the applicant’s release was “suspended” in application of Article 77 of the KPK (the former Code of Criminal Procedure, in force at the material time).   On 31 January 2001 the detention order against the applicant expired and, on 10 February 2001 the maximum legal period of detention, namely one year and six months, also expired, since that period could not be exceeded during the preliminary investigation stage. However, as the applicant’s release had been “suspended” in application of paragraph 5 of the above Article, he was not released.   In a judgment of 8 May 2001, the Kurzeme district court, ruling in the context of another criminal case brought against the applicant, found him guilty of sexual abuse, sodomy and the production of pornography representing a minor, and sentenced him to four years and six months’ imprisonment.   On 24 February 2005 the Criminal Affairs Division of the Supreme Court convicted the applicant of the charges against him and sentenced him to six years and six months’ imprisonment.   Relying on Article 5 §§1 and 4 (right to liberty and security), the applicant alleged that part of his pre-trial detention had been unlawful and complained that he had been denied an effective judicial review of his detention.   The Court noted in particular that, from 31 January 2001 to 8 May 2001, that is, for three months and eight days, the applicant remained in prison even though no judicial decision authorised his detention. His continued detention was based on Article 77 (5) of the KPK, which failed to delineate clearly the obligation to maintain an accused person in detention, let alone the possibility of doing so without a judicial warrant. This provision was therefore incompatible with the requirements of lawfulness under Article 5   §   1.   In addition, it appeared that the automatic extension of the applicant’s pre-trial detention was consistent with a general practice by the Latvian authorities, which had no specific legislative basis and was clearly intended to make up for the shortcomings in the KPK.   In those circumstances, the Court concluded unanimously that there had been a violation of Article 5 § 1.   The Court also noted that, during the period in dispute, namely three months and eight days, the applicant had been denied an effective judicial remedy that would have enabled a court to supervise the lawfulness of his detention. It therefore concluded, unanimously, that there had been a violation of Article 5 § 4.   The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR 2,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness) Abǎluţǎ v. Romania (no. 77195/01)   Violation of Article 1 of Protocol No. 1 Constantin Abǎluţǎ is a Romanian national who was born in 1938 and lives in Bucharest.   A judgment of 25 September 1997 ordered the Snagov local authorities to grant the applicant title to a plot of land measuring 4,000   m², situated on the banks of Lake Snagov; the plot had belonged to his mother and been appropriated by the State in 1986. The authorities offered him another plot of land, which he refused; in 1998 they allotted the disputed plot to other persons. Appeals by the applicant were unsuccessful.   Relying on Article 6 § 1 (access to a court) and Article 1 of Protocol No. 1 (protection of property), the applicant complained of the failure to enforce the judgment in his favour.   The Court considered that, by refusing to execute the judgment ordering that the applicant be granted title to an identified plot of land and by failing to provide him with a valid justification in that connection, the Romanian authorities had denied him effective access to a court. Consequently, it concluded unanimously that there had been a violation of Article 6 §   1.   Further, by refusing to execute the judgment in the applicant’s favour in compliance with its operative provisions, the Romanian authorities had denied him enjoyment of the disputed plot of land without providing an explanation. Accordingly, it concluded unanimously that there had been a violation of Article 1 of Protocol No. 1.   The Court held that Romania was to enforce the judgment in Mr Abǎluţǎ’s favour within three months of the date on which the Court’s own judgment became final. Failing that, Romania was to pay him EUR 120,000. The Court awarded the applicant EUR 4,000 for non-pecuniary damage and EUR 640 for costs and expenses. (The judgment is available only in French.)   Pântea v. Romania (no. 5050/02)   Violation of Article 6 § 1 (fairness) Elisabeta Pântea is a Romanian national who was born in 1962 and lives in Bârlad (Romania).   A judgment of 2 April 2001 declared void a contract of sale by which P.C. had sold to a third party a building, located in Griviţa, which he had previously sold to Mrs Pântea. Following steps taken by the applicant, her name was entered on the land register; however, P.C.’s name was not removed from it.   Relying on Article 6 § 1 (access to a court), the applicant complained about the failure to enforce the judgment in her favour.   Having regard to the circumstances of the case, the Court considered that the Romanian authorities had not made every necessary effort to enforce in its entirety the judicial decision in the applicant’s favour. Consequently, it concluded that there had been a violation of Article 6 § 1. It held that, within three months of the date on which the Court’s judgment became final, Romania was to take appropriate measures to enforce the judgment of 2 April 2001 in its entirety. The Court awarded Mrs Pântea EUR 1,000 in respect of non-pecuniary damage and EUR 100 for costs and expenses. (The judgments are available only in French.)   Lacarcel Mendez v. Spain (no. 41745/02)   Violation of Article 6 § 1 (fairness) The applicant, Isabel Lacárcel Menédez, is a Spanish national who was born in 1931 and lives in Murcia (Spain).   The applicant was the owner of an apartment in which she lived in Murcia. As she had not paid the joint maintenance costs, her co-owners took proceedings against her in order to obtain payment of a sum equivalent to EUR 877. In December 1995 the applicant was ordered to pay the amount due. In order to enforce this judgment, and at the co-owners’ request, the applicant’s apartment, valued at about EUR 25,500, was seized and sold at auction for approximately EUR 19,000.   In the intervening period, namely since 27 November 1995, two judges in Murcia, holding that the applicant was “presumed lacking in legal capacity”, authorised the applicant’s detention in a psychiatric hospital and subsequently renewed that authorisation. In January 2000 the applicant was declared lacking in legal capacity and one of her sisters was appointed as her guardian. The latter applied for the proceedings which had resulted in the sale of the applicant’s apartment to be declared void. Her action was dismissed at first instance on the ground that, at the material time, the applicant had not been declared lacking in legal capacity by a final judgment. In addition, the Constitutional Court dismissed the amparo appeal submitted by the applicant’s sister.   The applicant alleged that she had not been informed of the proceedings against her at the close of which her apartment had been sold at auction. She relied on Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy), and on Article 1 of Protocol No. 1 (protection of property).   The Court noted that, on account of her psychiatric state as “presumed lacking in legal capacity”, the applicant had been unable to suspect that proceedings were being brought against her. The manner in which the courts had examined her case had had the result of denying her effective access to a court. In addition, the courts which examined the action seeking to have those proceedings declared void had failed to remedy this lack of participation in the main proceedings. The reasoning based on the non-retrospective nature of a declaration of incapacity seemed too formalist and was incompatible with the applicant’s placement, against her will, in a psychiatric hospital, on the orders of two other judges in the same city.   Consequently, the Court concluded unanimously that there had been a violation of Article 6 §   1 and held that it was not necessary to examine separately the complaints under Article 13 and Article 1 of Protocol No. 1. It awarded the applicant EUR 25,000 for non-pecuniary damage and EUR 3,500 for costs and expenses. (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:     Violation of Article 1 of Protocol No. 1   Violation of Article 6 § 1 (length) Mario Federici v. Italy (No. 2) (nos 67917/01 and 68859/01) The applicant complained that he was unable to recover possession of his apartments over an extended period, owing to a lack of police assistance. He also complained of the length of the eviction proceedings. 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 held unanimously that there had been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention. It awarded the applicant EUR 10,000 in respect of non-pecuniary damage and EUR 5,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Kazmina v. Russia (no. 72374/01) Kuksa v. Russia (no. 35259/04)   Violation of Article 6 § 1 (fairness)   Violation of Article 13   Violation of Article 1 of Protocol No. 1 Mikhaylova and Others v. Ukraine (no. 16475/02)     Violation of Article 6 § 1 (fairness) Nedbayev v. Ukraine (no. 18485/04)   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), the applicants all complained about the lengthy failure to enforce various judgments and decisions, due to lack of State funds. The applicants in Kazmina, Kuksa and Mikhaylova and Others also relied on Article 1 of Protocol No. 1 (protection of property). Mikhaylova and Others also relied on Article 13 (right to an effective remedy), among others.   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 judgments in question were not enforced for years, a situation for which the Governments had not provided any plausible justification.   The Court held unanimously that there had been a violation of Article 6 § 1 in all of the cases. It also held unanimously that there had been a violation of Article 1 of Protocol No. 1 in the cases of Kazmina, Kuksa and a violation of Article 1 of Protocol No. 1 and Article 13 in the case of Mikhaylova and Others .   In the Kazmina case, the Court held that the domestic court’s judgment in favour of the applicant should be enforced by appropriate means and awarded Ms   Kazmina EUR   55 in respect of pecuniary damage, EUR 3,000 in respect of non-pecuniary damage and EUR   11 for costs and expenses. In the Kuksa case, the Court awarded the applicant EUR   3,900 in respect of non-pecuniary damage and EUR 66 for costs and expenses. In the Mikhaylova and Others case, the Court held that the judgment debts still owed to the applicants should be paid and awarded a total of EUR 18,280 to all the applicants in respect of pecuniary and non-pecuniary damage, and costs and expenses (to 12 of the applicants). Mr Nedbayev was awarded EUR   806 for non-pecuniary damage. (The judgments are available only in English.)     Length-of-proceedings cases   In the following cases the applicants complained of the excessive length of civil or administrative proceedings. In each of the cases except Škare v. Croatia and Cârstea and Grecu v. Romania , the applicants further relied on Article 13 (right to an effective remedy) in respect of its complaints about the excessive length of proceedings.   Violation of Article 6 § 1 (length) Škare v. Croatia (no. 17267/03)   Cârstea and Grecu v. Romania (no. 56326/00) Violation of Article 6 § 1 (length) Violation of Article 13 Digitel d.o.o. v. Slovenia (no. 70660/01)   Bakiyevets v. Russia (no. 22892/03)   Chevkin v. Russia (no. 4171/03)   Kostovska v. the Former Yugoslav Republic of Macedonia (no. 44353/02)       ***   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 ).   Press Contacts     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)   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. [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.