CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 29 juin 2006

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[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 14 in conjunction with Article 1 of Protocol No. 1 Zeman v. Austria (application no. 23960/02)   The applicant, Walter Zeman, is an Austrian national who was born in 1939 and lives in Vienna.   Following his wife’s death, the applicant was granted a survivor’s pension from the Vienna Municipality under the relevant provisions of the Pension Act of 1966 and the Pension Allowance Act. Section 15 of the Pension Act provided for a survivor’s pension which was 60 % of the retirement pension of the applicant’s late wife. A proportionate supplementary allowance under the Pension Allowance Act was added to that. According to the transitory provision contained in Article II of the Pension Act, the monthly payments to which the applicant was entitled amounted to one-third of the survivor’s pension from 1 July 1988, two-thirds of the survivor’s pension from 1 January 1989 and the full survivor’s pension from 1 January 1995.   On 1 January 1995, when the applicant was due to receive the full pension, an amendment came into force reducing his entitlement to between 40% and 60% of his late wife’s pension. According to Section 64e of that act, former Section 15 was still applicable to entitlements to a widow’s pension (or to the pension of a widower who was incapable of gainful employment and indigent) which had been acquired before 1 January 1995.   On 2 January 1995 the applicant’s pension was reduced to 40% of his late wife’s retirement pension. He appealed, submitting that, had he been a woman in a similar position, former Section 15 would have applied and he would have been entitled to 60%. His appeals were dismissed.   The applicant complained about the reduction of his survivor’s pension under the amended Pension Act and the Pension Allowance Act, relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights and Article 14 (prohibition of discrimination) of the Convention.   The European Court of Human Rights considered that the difference in treatment between men and women as regards entitlement to survivor’s pensions acquired prior to 1995 was not based on any “objective and reasonable justification”: It therefore held unanimously that there had been a violation of Article 14 taken in conjunction with Article   1 of Protocol   No.   1 and that that finding rendered it unnecessary for the Court to consider separately the applicant’s complaint under 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. (The judgment is available only in English.)     No violation of Article 3 Violation of Article 6 § 1 (fairness)   Violation of Article 8 Viola v. Italy (no. 8316/02)   The applicant, Marcello Viola, is an Italian national who was born in 1959. He is currently serving a prison sentence in Costarelle di Preturo (Italy).   In 1996 the applicant was remanded in custody. He was subsequently given a 12-year prison sentence for being a member of a mafia-type organisation and sentenced to life imprisonment for homicide and illegal confinement.   In July 2000 the applicant was placed under the special prison regime provided for in section 41 bis of the Prison Administration Act, which derogates from the ordinary conditions of detention. This regime was extended seven times for periods of six months or one year and the applicant was unsuccessful in a number of appeals against its implementation.   The applicant complained that the extended implementation of the section 41 bis regime had constituted in his case treatment contrary to Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 8 (right to respect for private and family life) on account of the restriction of family visits and the supervision of his correspondence. He also relied on Article 13 (right to an effective remedy), complaining that his right of access to a court had been impaired.   The Court observed that the arguments used to justify the maintaining of restrictions on his rights were not disproportionate to the charges on which the applicant had been convicted. He had been given harsh sentences for very serious offences. Accordingly, any suffering or humiliation that he may have felt did not go beyond what was inevitably connected with a given form of legitimate – in this case extended – treatment or punishment. The applicant had not provided the Court with any evidence from which it might have concluded that justification for maintaining the restrictions was manifestly lacking in this case. That being so, the Court held unanimously that there had been no violation of Article 3.   Moreover, the Court noted that in justifying the maintaining of restrictions, the Minister of Justice had referred in each decree to the applicant’s personal situation as it had developed since the previous decree. It therefore held unanimously that there had been no violation of Article   8 in respect of restrictions on family visits.   As to the supervision of the applicant’s correspondence, the Court reiterated that it had already found in the past that section 18 of the Prison Administration Act, providing for the supervision of prisoners’ correspondence, could not be regarded as a law within the meaning of Article 8. Accordingly, the Court held unanimously that there had been a violation of that article.   Lastly, the Court noted that the applicant had complained in substance of interference with his right of access to a court, as guaranteed by Article 6 § 1, and it decided to examine the complaint under that article. It found that the domestic courts had never ruled on the merits of the applicant’s claim and therefore concluded that the lack of any decision on the merits of the appeals had nullified the effect of the courts’ review of the decrees issued by the Minister of Justice. In addition, the Court was of the opinion that the applicable legislation laid down a time-limit of only ten days for adjudication partly because of the seriousness of the special regime’s effects on prisoners’ rights and partly because the impugned decision remained valid for only a limited time. Consequently, the failure of the courts to rule on the applicant’s appeals had impaired his right to have his case heard by a court. The Court therefore held unanimously that there had been a violation of Article 6 § 1.   As the applicant had not submitted any claim for just satisfaction within the time allowed, despite his attention having been drawn to that point, the Court considered that no award should be made to him under that head. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness) Caracas v. Romania (no. 78037/01)   No violation of Article 1 of Protocol No. 1 The applicants, Eufrosina   Caracas (who died in 2001), Victoria Cristina Caracas and Dimitrie   Victor   Caracas, all Romanian nationals who live or lived in Bucharest, were born in 1915, 1947 and 1943 respectively.   In their capacity as heirs the applicants brought an action for recovery of possession of a building in Bucharest which had been nationalised by the State in 1950 pursuant to Decree no.   92/1950. The Bucharest Court of First Instance and County Court allowed their application. However, on 14 October 1996 the Bucharest Court of Appeal declared the action inadmissible on the ground that the applicants had not exhausted all the stages of the administrative procedure for the recovery of the building, as provided for by Law no. 112/1995. Some of the applicants thus applied for the recovery of the building in accordance with that procedure, but to date they have received no reply from the local commission for the application of Law no. 112/1995.   The applicants brought a second action for recovery, but it was declared inadmissible on the ground that the judgment of 14 October 1996 had already dealt with the matter ( res judicata) .   In April 2001 the applicants sought the recovery of the disputed property in accordance with Law no. 10/2001. Those proceedings are still pending.   The applicants complained that the dismissal of their second action for recovery of possession had impaired their right of access to a court as guaranteed by Article 6 § 1 (right to a fair hearing). In addition, they complained that the judgment in question had interfered with their right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1 (protection of property).   The Court considered that the mere fact that the applicants had had access to a court, when their second action was only to be declared inadmissible through the operation of res judicata provisions, did not satisfy the requirements of Article 6 § 1. Accordingly, the Court held that the applicants had been deprived of any clear or practical access to a court for the purposes of obtaining a ruling on their application for the recovery of the disputed building. It therefore held unanimously that there had been a violation of Article 6 § 1.   The Court observed that, at the relevant time, the reasoning given by the Court of Appeal in declaring the first action for recovery inadmissible was in line with the settled case-law of the Romanian courts, which dismissed such actions on the ground that Law no. 112/1995 was applicable. Consequently, the judgments of the Court of First Instance and of the County Court were not sufficient to generate a proprietary interest amounting to an “asset”. In those circumstances the Court found that, in the context of their restitution claims, the applicants did not have a “possession” within the meaning of the first sentence of Article   1 of Protocol No. 1. The guarantees of that provision did not therefore apply to the present case, and the Court held unanimously that there had been no violation of Article 1 of Protocol No. 1.   By way of just satisfaction the Court awarded the applicants, jointly, EUR 5,000 in respect of non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 1 of Protocol No. 1 Jujescu v. Romania (no. 12728/03) Toganel and Gradinaru v. Romania (no. 5691/03) The applicants, Rodica Maria Jujescu, Laurentiu Toganel and Ana Gradinaru, are Romanian nationals who live in Bucharest and Targu Mures (Romania) respectively.   The applicants’ parents were the owners of property that was nationalised by the State in 1950 under Decree no. 92/1950. Mrs Jujescu’s mother owned property in Bucharest consisting of a house that had been converted into three flats and a plot of land measuring 323 m 2 , and Mr Toganel’s father owned property in Eforie Sud consisting of a house that had been converted into two flats plus the adjoining land.   Between 1996 and 1997 the State or the company managing state-owned real property sold the flats to the tenants occupying them. The applicants brought actions for recovery of possession against the State. The Romanian courts found that the properties had been illegally nationalised and ordered the State to return them.   The applicants then applied for the contracts of sale between the State and the tenants to be set aside. The Romanian courts granted two of the three applications brought by Mrs Jujescu and one of the two applications brought by Mr Toganel and Mrs Gradinaru, but refused to set aside the contracts in respect of which no bad faith had been established on the part of the purchasers.   In August 2001 the applicants sought restitution of the property in question under Law no. 10/2001. Mr Toganel and Mrs Gradinaru received no reply to their request. According to Bucharest City Council, Mrs Jujescu’s request could not be granted because certain documents certifying her title to the property in question were missing.   The applicants alleged that the sale of their flats to third parties, which had been validated by court decisions and had not given rise to any compensation, had resulted in a breach of Article 1 of Protocol No. 1 (protection of property).   The Court noted that the sale of the applicants’ property prevented them from enjoying their right, while no compensation had been awarded to them.   Further, the Court noted that Law no. 247/2005 had been enacted on 22 July 2005, amending Law no. 10/2001. The new legislation granted persons in the same situation as the applicant a right to compensation equalling the market value of assets which could not be returned. It provided for compensation in the form of a shareholding in a securities investment company. The limited company,   Proprietatea, had been registered in the Bucharest Register of Companies to that end on 29 December 2005.   Assuming that the request for restitution of the property made by the applicants under Law no. 10/2001 was admissible and could give rise to compensation, the Court observed that the company   Proprietatea did not currently operate in a manner likely to result in an actual award of compensation. Accordingly, it considered that the negation of the applicants’ property rights, combined with the total lack of compensation, had imposed a disproportionate and excessive burden on the applicants that was incompatible with the right to peaceful enjoyment of their possessions.   Accordingly, the Court concluded, unanimously in both cases, that there had been a breach of Article 1 of Protocol No. 1.   The Court held that Romania must return the two flats in question to the applicants within three months of the date on which the present judgments became final. Should it fail to return the properties, it was to pay Mrs Jujescu EUR 100,000 and Mr   Toganel and Mrs Gradinaru EUR 14,000 jointly for pecuniary damage. The Court also awarded Mrs   Jujescua   EUR 3,000 for non-pecuniary damage and   EUR 900 for costs and expenses, and awarded Mr Toganel and Mrs Gradinaru EUR 1,400 for non-pecuniary damage. (The judgments are available only in French.)     Two violations of Article 8     Violation of Article 6 § 2 Panteleyenko v. Ukraine (no. 11901/02)   Two violations of Article 13 The applicant, Oleksandr Sergiyovych Panteleyenko, is a Ukrainian national who was born in 1960 and lives in Chernigiv (Ukraine).   In May 1999 criminal proceedings were instituted against the applicant for abuse of power while acting in his capacity as a private notary and for forgery of official documents. His office was searched and a number of items seized. The applicant sued for compensation. The case was opened and closed a number of times. On 26 June 2002 the Desniansky Court indicated that the investigation case file contained sufficient evidence against the applicant, but that, having regard to the insignificance of the offence, further criminal prosecution was impractical. The applicant’s appeals were dismissed.   In August 2000 the Novozavodsky District Court of Chernigiv declared the search of the applicant’s office illegal. Furthermore, the authorities, instead of collecting the evidence relating to the criminal case, had seized all the official documents and certain personal items in the applicant’s office. That judgment was subsequently quashed.   On 26 December 2001 the Novozavodsky Court found that the applicant had no standing to claim compensation for any acts or omissions allegedly committed by the authorities in the course of the investigation.   In December 2001 the applicant instituted proceedings in the Novozavodsky Court against the Chernigiv Law College and its principal for defamation. The applicant alleged that the Principal had made libellous and abusive statements about him, questioning his mental health. The applicant demanded an apology and compensation. In March 2002 Chernigiv Regional Psycho-Neurological Hospital submitted to the court a certificate to the effect that the applicant had been registered as suffering from a mental illness. The information was read out by a judge at one of the subsequent hearings although it was not included in the final judgment. In June 2002 the applicant’s claim was rejected as unsubstantiated. The applicant appealed.   On 1 October 2002 the Court of Appeal ruled that the court’s request for information concerning the applicant’s mental health was illegal and bore no relevance to the case.   The applicant complained about the unlawful search of his office and the disclosure at a court hearing of confidential information regarding his mental state and psychiatric treatment. He also complained about the authorities’ refusal to pay him damages. He relied on Articles 8 (right to respect for private and family life), 6 § 2 (presumption of innocence) and 13 (right to an effective remedy).   The Court observed that the Novozavodsky Court had found that the impugned search was conducted unlawfully. The Government in their observations did not question those findings or produce any evidence proving otherwise. The Court therefore concluded that the interference in question has not been shown to be “in accordance with the law” and held unanimously that there had been a violation of Article 8 on that ground.   The Court noted that the Court of Appeal, having reviewed the case, came to the conclusion that the first instance judge’s treatment of the applicant’s personal information had not complied with the special regime afforded to psychiatric data. That finding was also not contested by the Government. Moreover, the Court noted that, the details in issue being incapable of affecting the outcome of the litigation, the court’s request for information was redundant and was thus unlawful for the purposes of Article 6 of the Psychiatric Medical Assistance Act 2000. For those reasons the Court held unanimously that there had been a breach of Article 8.   The Court noted that the court decisions terminating the criminal proceedings against the applicant were couched in terms which left no doubt as to their view that the applicant had committed the offence with which he was charged. In the Court’s view, the language employed by the Desniansky Court was in itself sufficient to constitute a breach of the presumption of innocence. The fact that the applicant’s compensation claim was rejected on the basis of the findings reached in the criminal proceedings merely exacerbated the situation. In view of the circumstances, the Court considered that the reasons given by the Desniansky Court, as upheld on appeal, combined with the rejection of the applicant’s compensation claim on the basis of those same reasons, constituted an infringement of the presumption of innocence. It held unanimously that there had been a violation of Article 6 § 2.   The Court further noted that the applicant applying to a higher prosecutor in order to have the search of his office declared unlawful could not have afforded him with any relief. The prosecutor did not have any power to award damages to a defendant for wrongdoing on the part of the investigating authorities. The Court therefore held unanimously that there had been a violation of Article 13 in that the applicant had no domestic remedy whereby he could enforce his right to respect for his home.   The Court also noted that the applicant’s successful appeal did not result in the discontinuation of the disclosure of confidential psychiatric data in the court case file or any award to the applicant of compensation for damages suffered as a result of the unlawful interference with his private life. The Court therefore held that there had also been a violation of Article 13 in that respect.   The Court awarded the applicant EUR 2,315 in respect of pecuniary damage and 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 8 Calicchio and Urriolabeitia v. Italy (no. 17175/02)   Violation of Article 13     Violation of Article 8   Violation of Article 13   Violation of Article 3 of Protocol No. 1   Chiumiento v. Italy (no. 3649/02) La Frazia v. Italy (no. 3653/02) Vertucci v. Italy (no. 29871/02) The applicants, Antonio Calicchio, Maria Bilbao Urriolabeitia, Michele Chiumiento, Rito Antonio La Frazia and Maria Rosaria Vertucci, are Italian nationals who were born in 1952, 1953, 1971, 1955 and 1972 respectively and live in Benevento (Italy). They were all declared bankrupt.   Relying on Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy), all the applicants submitted that the disqualifications imposed on them during the bankruptcy proceedings had infringed their right to respect for their private life and correspondence and alleged that they had not had a remedy by which to complain. They also argued that the bankruptcy order had deprived them of their possessions in breach of Article 1 of Protocol No. 1 (protection of property) and complained of a limitation on their freedom of movement under Article 2 of Protocol No. 4 (freedom of movement). Apart from the case of Calicchio and Urriolabeitia , the applicants also complained of the restriction of their electoral rights under Article 3 of Protocol No. 1 (right to free elections).   In the case of Calicchio and Urriolabeitia v. Italy, the Court declared the application admissible solely in respect of the complaints under Articles 8 and 13, and in the cases of Chiumiento, La Frazia and Vertucci , solely in respect of the complaints under Article 8, Article 3 of Protocol No.1 and Article 13.   The Court considered that, given that the names of bankrupts were automatically entered in the bankruptcy register and that the application of the disqualifications in question was not the subject of any judicial assessment or review, and in view of the length of time before rehabilitation could be obtained, the interference provided for by section 50 of the Bankruptcy Act with the applicants’ right to respect for their private life was contrary to the Convention. It accordingly concluded, unanimously in each of these cases, that there had been a breach of Article 8.   It concluded, unanimously in all these cases, that there had been a breach of Article 13.   Lastly, as to the interference with the applicants’ voting rights, the Court considered that the measure, which was provided for by Article 2 of Presidential Decree no. 223 of 20 March 1967, served no purpose other than to belittle those who had been made bankrupt, reprimanding them simply for having been declared insolvent irrespective of whether they had committed an offence. The interference did not therefore pursue a legitimate aim. Furthermore, the Court pointed out that, far from being a privilege, voting was a right protected by the Convention. It therefore held, unanimously in the Chiumiento, La Frazia and Vertucci cases, that there had been a breach of Article 3 of Protocol No. 1.   The Court awarded Mr Chiumiento, Mr Frazia and Mrs Vertucci EUR 1,500 each for non-pecuniary damage. In each of the four cases it awarded the applicants EUR 2,000 for costs and expenses. (The judgments are available only in French.)     Violation of Article 1 of Protocol No. 1 Scorzolini v. Italy (no. 15483/02)   Violation of Article 6 § 1 (fairness) The applicant, Cesare Scozolini, is an Italian national who was born in 1933 and lives in Rome.   He complained that he had been unable to recover possession of his apartment 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 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and Article   6 § 1 and awarded the applicant EUR 3,000 for non-pecuniary damage and 2,000 EUR 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 Shilov and Baykova v. Russia (no. 703/02) Vasilyeva and Others v. Russia (no. 8011/02) The applicants, all Russian nationals, live in Yaroslavl and Voronezh (Russia). They complained about the failure to enforce various judgments awarding them compensation, due to lack of State funds.   They all relied on Article   6 §   1 (right to a fair hearing) and Article   1 of Protocol No.   1 (protection of property).   In the case of Shilov and Baykova , the Court declared admissible one complaint concerning the enforcement of a court judgment and the remainder of the application inadmissible. The Court held, unanimously, that there had been a violation of Article 6 § 1 and Article 1 of Protocol No.   1 and awarded each of the applicants EUR 300 for non-pecuniary damage.   In the Vasilyeva and Others case, the Court decided, unanimously, to strike the application out of its list of cases, concerning two of the applicants. It held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No.   1 concerning the other five applicants and awarded them the global sum of 7,930   Russian roubles (RUR) (approximately EUR 228,86) in respect of non-pecuniary damage and EUR 2,800, each, for non-pecuniary damage.   (The judgments are available only in English.)     Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Murashova v. Ukraine (no. 16003/03) Volosyuk v. Ukraine (no. 60712/00)   Violation of Article 6 § 1 (fairness) Zhmak v. Ukraine (no. 36852/03)   The applicants, all Ukrainian nationals, live in Kherson, Khmelnitskiy and Kyiv (Ukraine). They complained about the failure to enforce various decisions awarding them compensation, due to lack of State funds.   They all relied on Article   6 §   1 (right to a fair hearing. In the cases Murashova and Volosyuk they relied on Article   1 of Protocol No.   1 (protection of property) and in the case of Murashova, the applicant relied further on Article 13 (right to an effective remedy).   The Court held that there had been a violation of Article 6 § 1 in all three cases and a violation of Article 1 of Protocol No. 1 in the cases of Murashova and Volosyuk . It further held that it was unnecessary to examine the complaint under Article 13 in the case of Murashova .   The Court awarded EUR 800 to Mrs Murashova and EUR 500 to Mr Zhmak for non-pecuniary damage. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr Volosyuk. (The judgments are available only in English.)           Length-of-proceedings cases   In the following cases, applicants complained of the excessive length of civil or administrative proceedings. They relied on Article 6 § 1 (right to a fair hearing within a reasonable time).     Violation of Article 6 § 1 (length) Brunnthaler v. Austria (no. 45289/99) Počuča v. Croatia (no. 38550/02) Nold v. Germany (no. 27250/02)   The applicants, in the following cases, all complained about the length of the proceedings to which they were a party and the lack of an effective domestic remedy in respect of the excessive length of those proceedings. They relied on Articles 6 § 1 (right to a fair hearing within a reasonable time) and 13 (right to an effective remedy).     Violation of Article 6 § 1 (length)   Violation of Article 13 Božić v. Croatia (no. 22457/02)   Olshannikova v. Russia (no. 77089/01)   Arsenić v. Slovenia (no. 22174/02 and 23666/02) Cokan v. Slovenia (no. 76525/01) Krajnc v. Slovenia (no. 75616/01) Lampret v. Slovenia (no. 42260/02) Mulej v. Slovenia (no. 42252/02) Husejinovič v. Slovenia (no. 41513/02) Plantarič v. Slovenia (no. 54503/00) Prevalnik v. Slovenia (no. 25046/02) Rakanovič v. Slovenia (no. 42306/02) Šilc v. Slovenia (no. 45936/99) Stevančevič v. Slovenia (no. 41514/02) Vukovič v. Slovenia (no. 43365/02)   ***   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.