CEDH · PRESS;GENERAL;ENG — 10 août 2006

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font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   468 10.8.2006   Press release issued by the Registrar   Chamber judgments concerning Bulgaria, Germany, Greece, Turkey and   Ukraine   The European Court of Human Rights has today notified in writing the following 23 Chamber judgments, of which only the friendly-settlement judgment is 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.     Padalov v. Bulgaria (application no. 54784/00)   Violation of Article 6 §§ 1 and 3 (c)   The applicant, Emil Simeonov Padalov, is a Bulgarian national who was born in 1965. He is currently in Plovdiv Prison (Bulgaria).   In September 1997 the applicant was arrested following a complaint by N.N., who accused him of having invited him home for a drink and, once there, beating him up, smashing his jaw, stealing his money and attempting to sexually abuse him. The applicant, who had first escaped from the police station before being caught again, was then charged with armed robbery resulting in permanent mutilation, attempted indecent assault and escape.   During questioning by the investigating judge the applicant declared that he did not want a lawyer. He was committed for trial before the Plovdiv Regional Court and appeared alone, without the assistance of a lawyer. On 27 January 1998 the court sentenced the applicant to 11 years’ imprisonment for theft and three years and six months’ imprisonment for sexual assault and escape.   The applicant appealed, in particular on the ground that he had not been given free legal assistance (a complaint he also made to the prosecution). The Court of Appeal upheld the judgment without examining the grounds relating to the alleged infringement of the rights of the defence. The applicant then appealed on points of law, arguing in particular that as he had not been assisted by a lawyer he had been obliged to defend himself. On 8   April   1999 his appeal was dismissed by the Supreme Court of Cassation, which did not examine the argument relating to the lack of legal assistance.   Relying on Article 6 §§ 1 and 3 (c) (right to legal assistance), the applicant complained that he had been unable to secure the appointment of an officially assigned lawyer during the criminal proceedings against him.   Having regard to the circumstances of the case, the Court considered that it was not established that the applicant had waived his right to the assistance of an officially assigned lawyer. Given the severity of the sentence to which he had been liable and the complexity of the applicable law, the Court held that the interests of justice demanded that, in order to receive a fair hearing, the applicant should have benefited from free legal representation in the criminal proceedings against him. Accordingly, the Court concluded, unanimously, that there had been a violation of Article 6 §§ 1 and 3 (c) and awarded the applicant EUR   1,000 for non-pecuniary damage and EUR   995 for costs and expenses. (The judgment is available only in French.)     Violation of Article 5 §§ 3 and 4 Toshev v. Bulgaria (no. 56308/00)   Violation of Article 6 § 1 (length) The applicant, Dimitar Ermenkov Toshev, is a Bulgarian national who was born in 1956 and lives in Sofia.   He was arrested on 5 July 1993 and charged with two robberies to which he later confessed. He was detained until 8 December 1993 when he was released on bail. The bail money was paid for by his friends.   On 8 March 1994 he was apprehended at the scene of another robbery and arrested. On 3 August 1998 Sofia City Court decided to release him on bail. In setting the amount of bail, the court did not seek any evidence in respect of his assets or his ability to provide a guarantee. Since he did not have the means to pay the bail money, he remained in detention until 24 August 1999.   During both periods of detention, his appeals for release were refused, and the authorities prolonged his detention mostly without citing any grounds.   The applicant complained in particular about the length and justification of his detention and the length of the criminal proceedings. He relied on Articles 5 (right to liberty and security) and 6 § 1 (right to a fair trial within a reasonable time).   The Court found that, in their decisions to extend the applicant’s detention, the authorities failed to assess specific facts and evidence about the possible danger of his absconding, re-offending or obstructing the investigation. Furthermore, in setting the amount of bail, Sophia City Court did not make an assessment of the applicant’s wealth or assets at the time, nor did it seek any information or evidence as to whether he could provide the guarantee. It noted that the applicant’s subsequent inability to pay the bail money resulted in him remaining in detention for a further year and 21 days.   The Court therefore held unanimously that there had been a violation of Article 5 § 3 on account of the authorities’ failure to justify detaining the applicant for almost six years on charges of non-violent offences and the court’s failure to assess his ability to provide recognizance.   The Court noted there was no judicial procedure by which the applicant could challenge the lawfulness of his detention after the decision in August 1998 to release him on bail. It therefore held, unanimously, that there had been a violation of Article 5 § 4.   The Court noted that the proceedings in question had lasted six years and seven months. Having regard to the circumstances of the case, it 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 been a violation of Article 6 § 1.   The applicant was awarded EUR 3,500 in respect of non-pecuniary damage and EUR   2,000 for costs and expenses. (The judgment is available only in English.)   Yanakiev v. Bulgaria (no. 40476/98)   Violation of Article 6 § 1 (fairness) The applicant, Konstantin Argirov Yanakiev, is a Bulgarian national who was born in 1944 and lives in Varna (Bulgaria).   In late 1992, after the entry into force of certain amendments to the Housing Act of 1991, the applicant applied to purchase the flat he had been living in since 1986. He considered that paragraph 4 of the additional provisions of the Act entitled him to buy the flat at a preferential price.   On 4 January 1993 the applicant asked the Mayor of Varna to approve the sale. Along with other documents he submitted a letter from his employer’s board of directors, in which it informed the mayor that it had assented to the sale and asked him to validate it. The letter expressly mentioned that the sale was to be effected under paragraph 4 of the additional provisions of the Housing Act of 1991.   The mayor failed to reply. The applicant filed an application for judicial review of his tacit refusal.   In a judgment dated 30 November 1994, Varna Regional Court quashed the refusal and instructed the mayor to issue, within one month, an order validating the sale. The mayor refused to comply and on 3 February 1995 submitted a petition for review to the Supreme Court. On 14 January 1997, a three-member panel of the Supreme Administrative Court quashed the lower court’s judgment and discontinued the proceedings. The applicant filed a petition for review. On 10 July 1997 a five-member panel of the Supreme Administrative Court dismissed the applicant’s petition. Neither panel mentioned the Housing Act of 1991 in their reasons.   The applicant complained, in particular, that he was denied access to a court in respect of his application for judicial review of the tacit refusal of the mayor to proceed with the sale of the flat. He relied on Articles 6 § 1 (right to a fair hearing), 13 (right to an effective remedy), Article 1 of Protocol No. 1 (protection of property) and 14.   The Court observed that the Supreme Administrative Court did not touch upon the substance of the applicant’s claim that that he had a specific right to acquire the flat by virtue of paragraph 4 of the additional provisions of the Housing Act of 1991. Since that provision had a decisive impact for the outcome of his case, the Court found that the applicant was owed a specific and express reply. However, that part of his claim was not mentioned in the reasoning of either of the two panels of the Supreme Administrative Court.   The applicant was therefore not able to obtain a final judicial determination of his alleged entitlement to acquire the flat. That impaired the very essence of his right to access to a court, as it did not appear that he could resort to any other avenue of redress. The Court accordingly held unanimously that there had been a violation of Article 6 § 1.   The Court ruled that it was unnecessary to rule on the applicant’s other complaints and awarded Mr Yanakiev EUR 3,000 in respect of pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in English.)   Schwarzenberger v. Germany (no. 75737/01) No violation of Article 6 § 1 (fairness) The applicant, Peter Roland Schwarzenberger, is a German national who was born in 1957 and is at present serving a prison sentence in Bruchsal (Germany).   In April 1996 the applicant and his suspected accomplice, D., were arrested in Spain on suspicion of having murdered D’s adoptive mother. D. was subsequently extradited to Germany, while the applicant, refusing extradition, remained in detention in Spain.   On 8 April 1997 Heilbronn Regional Court found D. guilty of murdering his adoptive mother, attempting to murder his adoptive father and robbing them. According to the findings of the court, which were primarily based on the statements and admissions of the accused, the offences had been committed jointly with the applicant.   In December 1999, having been extradited to Germany, the same court convicted the applicant, who denied any involvement in the crimes, and sentenced him to life imprisonment. The court based its judgment mainly on the applicant’s own statements, D.’s incriminating testimony and on corroborative evidence.   The applicant unsuccessfully lodged motions for bias and appealed on points of law, arguing that two of the judges should have been excluded from the trial as both had already sat in the chamber which had previously tried D.   He argued that passages in the court’s judgment against D. reflected negatively on his character, and were susceptible of raising doubts about the impartiality of those judges. The Federal Constitutional Court rejected the applicant’s complaint as inadmissible.   The applicant complained about the Heilbronn Regional Court’s lack of impartiality. He relied on Article 6 § 1 (right to a fair trial).   The Court noted that the assessment of facts in the judgment given against the applicant clearly differed from that in the judgment against D. and did not contain any references to that judgment. That, the Court found, showed that the judges undertook a fresh consideration of the applicant’s case. The Court concluded that the applicant’s concerns with regard to the two judges’ impartiality were not objectively justified and accordingly held unanimously that there had been no violation of Article 6 § 1. (The judgment is available only in English.)   Gerogiannakis v. Greece (no. 30173/03)   Violation of Article 6 § 1 (length) The applicants, Pantelis and Charalampos Georgiannakis, are Greek nationals who were born in 1952 and 1950 respectively and live in Rethymno (Greece).   Following a dispute with another person about the wording of a cheque, the applicants were prosecuted for forgery, use of forged documents and fraud in 1991. They were convicted of fraud and sentenced to two years’ imprisonment. Their appeal on points of law was dismissed on 27 February 2003.   Relying on Article 6 § 1 (right to a fair trial within a reasonable time), the applicants complained in particular of the length of the criminal proceedings against them.   The Court noted that the proceedings had lasted nearly 11 years and 11 months for seven levels of jurisdiction. Having regard to the circumstances of the case, it considered that that period was excessively long and did not satisfy the “reasonable-time requirement”. Accordingly, the Court held, unanimously, that there had been a breach of Article 6 § 1 and awarded each of the applicants EUR   2,000 for non-pecuniary damage. (The judgment is available only in French.)   Erin v. Turkey (no. 71342/01)   Violation of Article 6 § 1 (length) The applicant, Mehmet Salih Erin, is a Turkish national who was born in 1962 and lives in İzmir (Turkey).   On 6 March 1996 the applicant was taken into police custody and was later charged with forging passports. The proceedings came to an end on 3 December 2003 when İzmir Assize Court decided to terminate the criminal proceedings holding that the prosecution was time-barred.   The applicant complained about the length of the proceedings. He relied on Article 6 § 1 (right to a fair trial within a reasonable time).   The Court noted that the proceedings in question had lasted seven years and nine months. Having regard to the circumstances of the case, it 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 been a violation of Article 6 § 1 and awarded the Mr Erin EUR   6,000 in respect of non-pecuniary damage and EUR   1,000 for costs and expenses. (The judgment is available only in English.)     Repetitive cases   In the following cases the Court has reached the same finding as in similar cases raising the same issues under the Convention:     Violation of Article 1 of Protocol No. 1 Acun and Yumak v. Turkey (no. 67112/01) Kir and Others v. Turkey (no. 67145/01) Mehmet Ali Gündüz v. Turkey (no. 27633/02) The applicants complained, under Article 1 of Protocol No. 1 (protection of property), of delays in the payment of compensation due to them following the expropriation of their property . They further alleged that the interest they had received did not reflect the actual rate of inflation between the date the award was assessed and the date of payment. The applicants in the case of Kir and Others also relied on Article 6 § 1 (right to a fair hearing within a reasonable time).   The Court concluded unanimously in each case that there had been a violation of Article 1 of Protocol No. 1 and took the view that it was not necessary to consider separately the complaint under Article 6 § 1. It held that the finding of a violation in itself constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicants and in respect of pecuniary damage and costs and expenses awarded them the total amounts set out below, expressed in euros. (The judgments are available only in English.)     Pecuniary damage Costs and   expenses Acun and Yumak v. Turkey 4,400 500 Kir and Others v. Turkey 397 1,300 Mehmet Ali Gündüz v. Turkey 13,671 1,000       Violation of Article 6 § 1 (fairness) Andrusenko and Others v. Ukraine (no. 41073/02)   Gubenko v. Ukraine (no. 22924/02)   Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Aistov v. Ukraine (no. 1743/04) Chernysheva v. Ukraine (no. 22591/04) Grisha v. Ukraine (no. 1535/03) Karpenko v. Ukraine (no. 10559/03) Kirilo v. Ukraine (no. 19037/03) Kretinin v. Ukraine (no. 10515/03) Mizina v. Ukraine (no. 28181/04) Yavorskaya v. Ukraine (no. 20745/02) The applicants all complained about the lengthy failure to enforce various judgments awarding them compensation, due to lack of State funds. They all relied on Article 6 § 1 (access to a court). With the exception of Andrusenko and Others and Gubenko, the applicants also relied on Article   1 of Protocol No.   1 (protection of property).   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 Government had not provided any plausible justification.   The Court held unanimously that there had been a violation of Article 6 § 1 in all the cases and a violation of Article 1 of Protocol No. 1 in all the cases except Andrusenko and Others v. Ukraine and Gubenko v. Ukraine . The Court considered that the Government should pay the outstanding debts in settlement of pecuniary damage in those cases concerned, and awarded the following total amounts (expressed in euros) to the applicants in respect of non-pecuniary damage. (The judgments are available only in English.)     Non-pecuniary damage Aistov v. Ukraine 600 Andrusenko and Others v. Ukraine 9,100 Chernysheva v. Ukraine 630 Grisha v. Ukraine 2,300 Gubenko v. Ukraine 2,000 Karpenko v. Ukraine 400 Kirilo v. Ukraine 400 Kretinin v. Ukraine 800 Mizina v. Ukraine 1,000 Yavorskaya v. Ukraine 800     Length-of-proceedings cases   In the following cases the applicants complained of the excessive length of civil proceedings. They relied on Article 6 § 1 (length of civil proceedings). The applicant in Babichkin v. Bulgaria also relied on Article 13 (right to an effective remedy).   Vandaele and Van Acker v. Belgium (no. 19443/02)   Friendly settlement     Violation of Article 6 § 1 (length) Babichkin v. Bulgaria (no. 56793/00)   Violation of Article 13     Violation of Article 6 § 1 (length) Nalbant v. Turkey (no. 61914/00) Kukharchuk v. Ukraine (no. 10437/02)   ***   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.