CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 juillet 2006

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Croatia (application no. 30431/03)   Violation of Article 13 The applicants, Mirko Vajagić and Ružica Vajagić, are Croatian nationals who were born in 1937 and 1942, respectively, and live in Virovitica (Croatia).   In 1976 the local authorities expropriated the applicants’ property with a view to building a road. Compensation proceedings before the competent judicial authority were pending from 1977 until 1994 when, due to a change in legislation, the case was transferred to the administrative authorities. From December 1995 onwards, numerous decisions were made awarding the applicant compensation, most of which were subsequently quashed by the Ministry of Justice, and the case remitted for fresh consideration. The proceedings are still pending.   Following the entry into force on 22 March 2002 of the Constitutional Court Act, the applicants filed a motion of review of constitutionality of certain provisions of the 1994 Expropriation Act. No decision has as yet been reached.   The applicants complained in particular about the continuing failure of the domestic authorities to decide on the amount of compensation payable to them. They relied on Article 1 of Protocol No. 1 (protection of property), Articles 6 § 1 (right to a fair hearing) and 13 (right to an effective remedy) of the Convention.   The European Court of Human Rights noted that 29 years had passed without the applicants having been paid any compensation, of which more than eight and a half years fell within the Court’s competence - Protocol No. 1 having entered into force in regard to Croatia on 5 November 1997.   The Court found that the Croatian Government had not produced any convincing evidence to justify the failure of the domestic authorities for so many years to determine the final amount of the compensation due. Furthermore, it found that most of the delays were caused by the successive remittals which, in the Court’s view, disclosed a deficiency in the procedural system. It concluded that the resultant interference with the applicants’ property rights placed an excessive burden on them and held, unanimously, that there had been a violation of Article 1 of Protocol No. 1.   The Court observed that, at the time when the applicants lodged their application, there was no remedy under domestic law which would have enabled them to obtain a decision determining the amount of their compensation. Consequently, the Court held unanimously that there had also been a violation of Article 13.   The Court held unanimously that it was unnecessary to examine the length complaint under Article 6 § 1. It reserved its decision on just satisfaction. (The judgment is available only in English.)   Friendly settlement Theodorakis and Theodorakis – Tourism and Hotels Ltd. v. Greece (no. 71511/01) The applicants are Georgios Theodorakis, a Greek national who was born in 1961 and lives in Chania (Greece), and the limited company Theodorakis – Tourism and Hotels Ltd. of which Mr Theodorakis is the manager.   The applicant company owned two hotels: the Akali Hotel and the Creta Beach Hotel. To finance the building of the Akali Hotel, in particular, it obtained loans from the Hellenic Bank for Industrial Development (the “ETVA”) for a total of approximately EUR 306,382, subject to a registered charge against the two hotels for the equivalent of EUR 8,804,108.   Following delays in the repayment of the loan, the ETVA applied to the Crete Court of Appeal for an order placing the applicant company under the special liquidation procedure of Law no. 1892/90, which provides for fast–track liquidation of companies that are heavily in debt. The Court of Appeal allowed the ETVA’s application and appointed the company ETVA Finance as liquidator. The applicants lodged an appeal against that decision and also obtained a stay of execution, which is still in force.   The applicants complained of the judicial proceedings resulting in the company’s placement under a special liquidation procedure. They relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   The case has been struck out of the list following a friendly settlement under which Mr Theodorakis is to receive EUR 50,000 in respect of pecuniary and non-pecuniary damage and for costs and expenses. (The judgment is available only in French.)   Koudelka v. Czech Republic (no. 1633/05)   Violation of Article 8 The applicant, Jiří Koudelka, is a Czech national who was born in 1957 and lives in Prague. In 1990 a daughter was born of his relationship with E.P. The couple separated the following year and custody of the child was granted to E.P.   In 1993 the applicant applied to the court to gain a right of access, alleging that E.P. was preventing him from seeing their daughter. The court-appointed experts did not observe any impediment to contacts between the applicant and his daughter but reported an antagonistic relationship between the parents and a negative attitude of the mother, whose cooperation was in their view essential for the enforcement of a right of access. In a decision of 24   October 1995, which was upheld on appeal, the applicant was granted a right of supervised access: he was to have contact with his child every other Thursday afternoon in a welfare centre with the assistance of a specialised social worker.   That arrangement is still in force, although proceedings brought by E.P. to have it terminated are pending. The applicant has been trying to have his right of access enforced from the outset. The only attempt to establish contact was made in July 2002 at a specialised centre. On that occasion the experts found serious shortcomings in the upbringing of the child by E.P. and observed that contact between the applicant and his daughter would not be possible without prior therapy, as E.P. had been instilling a parental alienation syndrome in the child.   The applicant complained that the authorities had not made sufficient efforts to enforce his right of access in respect of his daughter, in spite of her mother’s resistance. He relied in particular on Article 8 (right to respect for private and family life) and Article 6 § 1 (right to a fair hearing).   Even though it had been aware, from 1995, of E.P.’s obstruction to contact between the applicant and his daughter, the domestic court had for a long time done nothing more than address a formal warning to E.P. in 1996, and that measure had manifestly remained ineffective. Subsequently, it was not until April 1999 and October 2000 that the court had imposed two fines on E.P., for about EUR 70 and EUR 7. Having regard to the circumstances of the case and the reprehensible attitude of the mother, the Court considered that such a measure could not be regarded as sufficient or adequate.   In the circumstances of the case, the Court considered that the non-enforcement of the applicant’s right of access was mainly attributable to the manifest refusal of the mother, and then to that of the child under her mother’s influence. It found, however, that the Czech courts had not taken all the measures that could reasonably have been expected of them, in the very difficult dispute at issue, in order to secure E.P.’s compliance with the applicant’s right of access, and that their action had not been sufficiently prompt or systematic. Moreover, in view of the psychologist’s conclusion in July 2002 that E.P. was not bringing the child up properly, it was legitimate to wonder whether the courts had been acting in the child’s interest.   In the Court’s view, the Czech courts had allowed this dispute to be settled by the mere passage of time, such that the resumption of relations between the applicant and his daughter no longer seemed possible. Accordingly, the Court held unanimously that there had been a violation of Article 8. It did not consider it necessary to examine separately the complaint under Article 6 § 1 and awarded the applicant EUR 13,000 in respect of non-pecuniary damage, together with EUR 2,000 for costs and expenses, less the EUR 701 already received from the Council of Europe by way of legal aid. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness) Sokurenko and Strygun v. Ukraine (nos. 29458/04 and 29465/04) The applicants, Mykola Ivanovych Sokurenko and Anatoliy Mykhaylovych Strigun, are Ukrainian nationals who live in Samgorodok (Ukraine).   In February 2002 Agro-Ros Ltd successfully brought proceedings against the Smilyanskiy District Council and each of the applicants, challenging the Council’s decision to provide the applicants with certain plots of land. The applicants appealed unsuccessfully to the Kyiv Commercial Court of Appeal and then to the Higher Commercial Court of Ukraine which quashed the decisions of the lower courts and remitted the case for a fresh consideration.   On appeal by Agro-Ros Ltd, the Supreme Court of Ukraine quashed the resolutions of the Higher Commercial Court on the ground that their findings had not corresponded to the factual circumstances and had been unfounded and erroneous, and upheld the resolutions of the Kyiv Commercial Court of Appeal, thus leaving it in force.   The applicants complained that the Supreme Court’s decision was not taken in accordance with the law and that it therefore could not be considered to be “a tribunal established by law”. They relied on Article 6 § 1 (right to a fair hearing).   The Court observed that the Supreme Court did not give any reasons for taking a decision, exceeding its jurisdiction in deliberate breach of the Code of Commercial Procedure, and taking such type of decisions, as the Ukrainian Government admitted, became a usual practice for the Supreme Court of Ukraine. In the Court’s view, having overstepped the limits of its jurisdiction, the Supreme Court could not be considered a “tribunal established by law” within the meaning of Article 6 § 1 in respect of the impugned proceedings.   The Court held by four votes to three that there had been a violation of Article 6 § 1 and held by five votes to two to awarded each applicant EUR   500 for non-pecuniary damage and EUR   50 for costs and expenses. (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   Violation of Article 13 Pio and Ermelinda Taiani v. Italy (no. 3641/02) Violation of Article 3 of Protocol No. 1 The applicants, Pio Taiani and Ermelinda Taiani, are Italian nationals who were born in 1969 and 1966, respectively, and live in Benevento (Italy). They were declared bankrupt in 1996.   Relying on Articles 8 (right to respect for correspondence) and 13 (right to an effective remedy), the applicants argued that the disqualification affecting them during the bankruptcy proceedings had interfered with their right to respect for their correspondence and alleged that they had had no remedy by which to submit such a complaint. They further complained in particular about the restriction on their electoral rights, relying on Article 3 of Protocol No. 1 (right to free elections).   The Court considered that, in view of the automatic nature of the addition of a bankrupt’s name to the register of bankrupts, the lack of any judicial assessment or scrutiny of how the relevant disqualification measures were applied and the requisite waiting period for rehabilitation, the interference under section 50 of the Bankruptcy Act with the applicants’ right to respect for their private life had been in breach of the Convention. It accordingly held, unanimously, that there had been a violation of Article 8.   It further held unanimously that there had been a violation of Article 13.   Lastly, as to the interference with the applicants’ electoral rights, the Court considered that the measure at issue, provided for by Article 2 of Presidential Decree no. 223 of 20 March 1967, had the sole purpose of degrading the bankrupt and represented a moral reprimand against him simply on the basis of his insolvency and regardless of guilt. Such interference did not therefore pursue a legitimate aim. The Court further pointed out that, far from being a privilege, the act of voting was a right guaranteed by the Convention. Accordingly, the Court held unanimously that there had been a violation of Article 3 of Protocol No. 1.   The Court awarded the applicants EUR 1,500 each in respect of non-pecuniary damage and EUR 2,000 jointly 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 Bartos v. Romania (no. 12050/02) Doina Elena Bartos is a Romanian national who was born in 1937 and lives in Budapest.   After the applicant moved abroad in 1989, the State took possession of property that belonged to her, consisting of a house and the adjoining land. She brought proceedings for recovery of possession and the Romanian courts allowed her application.   As the State had subsequently sold the property to the tenants, Mr and Mrs L., the applicant also brought proceedings seeking the rescission of the contract of sale. In a judgment of 24   April 2001, which was confirmed on appeal by a final judgment of 24 September 2001, the Romanian courts rescinded the contract and ordered Mr and Mrs L. to enter into a lease agreement with the applicant. Those decisions were quashed by the Supreme Court, ruling on an appeal from the Procurator-General, and the applicant was ordered to pay damages to Mr and Mrs L. in respect of work they had carried out.   The applicant alleged in particular that there had been a breach of the principle of legal certainty and interference with her right to peaceful enjoyment of her possessions, on account of the setting-aside of a final judgment following an appeal by the Procurator-General. She relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   The Court reiterated that the setting-aside of a final judgment was contrary to the principle of legal certainty. By setting aside judicial decisions that had become final, the Supreme Court of Justice had infringed the applicant’s right to a fair hearing. Accordingly, the Court held unanimously that there had been a violation of Article 6 § 1.   In addition, the judgment of the Supreme Court of Justice had cancelled the obligation towards the applicant and had ordered her to pay damages to Mr and Mrs L. Even supposing that the deprivation of property could be shown to have pursued a public interest, such a drastic breach of the applicant’s rights had upset the fair balance that had to be struck between the protection of property and the demands of the public interest. The Court therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1 (protection of property).   By way of just satisfaction, the Court awarded the applicant EUR 2,000 in respect of non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is only available in French.)     Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Pietro and Others v. Romania (no. 8402/03) The five applicants, Bernardis Pietro, Elena Pietro, Gioconda Rozina Cojocaru, Doina-Mariana Stoica and Marcela Fenato are Romanian nationals who were born in 1927, 1921, 1926, 1948 and 1932 respectively and live in Ploieşti (Romania).   In their capacity as heirs, they brought proceedings for recovery of possession in respect of two buildings situated in Ploieşti that had been nationalised by the State in 1950. The competent administrative commission decided not to return the property to the applicants but to award them compensation. The municipality then sold the two buildings, with the exception of the ground floor in one of them, to the State’s tenants.   In a final judgment of 2 April 1999, the Ploieşti Court of Appeal ordered the ground-floor flat to be returned to the applicants and sentenced the authorities to pay compensation in an approximate amount of EUR 10,515. The applicants took various steps to obtain payment of the compensation from the authorities, but refused to take possession of the ground-floor flat, considering that it was not habitable as a unit separate from the rest of the building. On 10   December 2004 the authorities paid the requisite compensation to the applicants.   The applicants complained of the failure by the authorities to enforce the 2 April 1999 judgment of the Ploieşti Court of Appeal until December 2004, as regards the compensation awarded in that judgment. They relied in particular on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   By refusing for a period of three years to comply with their obligation to pay compensation, the Romanian authorities had deprived the applicants of effective access to a court. Accordingly, the Court held unanimously that there had been a violation of Article 6 §   1.   In addition, the delay attributable to the Romanian authorities, for which they failed to offer any legal basis or justification, had entailed arbitrary interference with the applicants’ right to the peaceful enjoyment of their possessions. Accordingly, the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 (protection of property).   By way of just satisfaction, the Court awarded EUR 1,100 to each of the five applicants in respect of non-pecuniary damage. (The judgment is only available in French.)     Radu v. Romania (no. 13309/03)   Violation of Article 1 of Protocol No. 1 Alexandru Radu and Elena-Ligia Radu are Romanian nationals who were born in 1937 and 1943 and live in Geneva (Switzerland).   The applicants were the owners of a flat in Bucharest until the State took possession of it in 1983 on the ground that they had not returned to Romania following their stay in Switzerland. In 1996 the municipality sold the flat to the family who were renting it. The applicants brought proceedings for recovery of possession and their application was allowed by the Romanian courts in 1997. In 1998 the applicants were informed that the building had been sold and they brought proceedings for the rescission of the contract of sale but were unsuccessful.   In 2002 the applicants lodged an application for the return of the property under Law no.   10/2001 but there has been no decision to date.   Relying on Article 1 of Protocol No. 1 (protection of property), the applicants argued that the sale of their flat by the State to third parties had interfered with their right of property.   The Court noted that the sale of the applicants’ property had prevented them from exercising their property rights, without any compensation being paid to them.   Moreover, the Court observed that on 22 July 2005 Law no. 247/2005 had been enacted, amending Law no. 10/2001. The new law provided for a right of compensation to those whose nationalised property could not be returned, equivalent to the market value of that property. It further provided that those so entitled might be compensated in the form of participation, as shareholders, in a mutual investment fund. To that end, the limited company “Proprietatea” had been registered at the Bucharest Companies Registry on 29 December 2005.   Even supposing that the applicants’ application for the return of the property under Law no. 10/2001 was admissible and that they were entitled to compensation, the Court observed that the company “Proprietatea” was not yet operational to the extent of being effectively able to provide them with compensation. Accordingly, it considered that the denial of the applicants’ property right, combined with the total lack of compensation, had caused them for almost nine years to bear a disproportionate and excessive burden in breach of their right to the peaceful enjoyment of their possessions. Accordingly, the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1.   The Court held that Romania had to return the property to the applicants within three months from the date on which this judgment became final. Failing that, the State would have to pay them EUR 75,000 in respect of pecuniary damage. The Court awarded the applicants EUR   8,000 in respect of non-pecuniary damage. (The judgment is only available in French.)   ***   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.