CEDH · PRESS;GENERAL;ENG — 5 octobre 2006

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Austria (application no 12555/03)   Violation of Article 6 § 1 (length) The applicant, Pierre Müller, is an Austrian national who was born in 1968 and lives in Vienna. He is the managing director of a company.   In January 1994 an officer of the Vienna Employment Office found a Polish national working on the applicant’s company’s construction site without an employment or work permit. The applicant was subsequently invited to comment on the charge against him. The Vienna municipality received his submissions on 11 August 1994 and on 10 August 1995 convicted him of illegally employing a foreigner under the Employment of Aliens Act and fined him. The applicant made a series of complaints but the conviction was nevertheless confirmed in a decision served on the applicant’s counsel in 3 October 2002.   The applicant complained, in particular, about the length of the criminal proceedings concerning the charge against him. He relied on Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention.   The European Court of Human Rights noted that the proceedings in question had lasted eight years and nearly two 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 4,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,001.96 for costs and expenses. The Court declared the remainder of the application inadmissible. (The judgment is available only in English.)     Violation of Article 6 § 1 (length) Sodadjiev v. Bulgaria (no. 58733/00)   Violation of Article 13 The applicant, Mitko Simeonov Sodadjiev, is a Bulgarian national who was born in 1970 and lives in Plovdiv (Bulgaria).   On 29 July 1993 the applicant was questioned by a police officer after being caught in the process of stealing two bottles of gas. The proceedings ended on 3   April 2000, when the Plovdiv District Court ratified an agreement reached between the prosecution service and the applicant, under which he acknowledged his guilt and was given a suspended sentence of six months’ imprisonment.   The applicant complained in particular about the length and fairness of the criminal proceedings against him. He relied on Articles 6 § 1 (right to a fair trial within a reasonable time) and 13 (right to an effective remedy).   The Court noted that the proceedings in question had lasted almost six years and eight months. Having regard to the circumstances of the case, it considered that such a period was excessive and did not satisfy the “reasonable time” requirement. Accordingly, the Court concluded, unanimously, that there had been a violation of Article 6 § 1. It also concluded, unanimously, that there had been a violation of Article 13.   By way of just satisfaction, the Court awarded the applicant EUR 1,000 in respect of non-pecuniary damage, and EUR 600 for costs and expenses. (The judgment is available only in French.)     No violation of Article 6 §§ 1 and 3 Marcello Viola v. Italy (no. 45106/04)   No violation of Article 4 of Protocol No. 7 The applicant, Marcello Viola, is an Italian national who was born in 1959. He is currently detained in L’Aquila prison (Italy), where he is serving a life sentence.   The applicant, who was accused of membership of a mafia-type criminal association, murder and of possessing weapons illegally, was committed for trial in an assize court. On 10   February 1999 the Reggio di Calabria Assize Court of Appeal sentenced him to 12 years’ imprisonment.   In the meantime, another set of criminal proceedings was brought against the applicant; he was suspected, among other things, of having been involved in several murders and attempted murders and of possessing weapons illegally. On 22 September 1999 the Palmi Assize Court imposed five life sentences on the applicant and ordered that he be kept in solitary confinement for three years; it also found him guilty of another charge, carrying a total sentence of 70 years’ imprisonment.   This finding was based on statements by witnesses who had turned state evidence, which were considered to be accurate and credible and which were corroborated by other evidence. The applicant appealed.   The applicant, who was subjected to a special prison regime, which among other things restricted his contacts with the outside world, followed the hearing before the Assize Court of Appeal by videoconference. On 5   March 2002 the Reggio di Calabria Assize Court of Appeal acquitted the applicant of one of the charges of murder and reduced his sentence to life imprisonment with a two-year period of solitary confinement. The applicant appealed unsuccessfully on points of law.   The applicant complained that his participation in the hearing by videoconference had amounted to a violation of Article 6 (right to a fair trial). Relying on Article 4 of Protocol No.   7 (right not to be tried or punished twice), he further complained that he had been tried twice for the same offence.   In the Court’s opinion, it was undeniable that the transfer of a prisoner such as the applicant entailed particularly stringent security measures and a risk of absconding or attacks. It could also provide an occasion to renew contact with the criminal associations to which the applicant was suspected of belonging.   In the present case, the applicant was accused of serious crimes related to the mafia’s activities. The fight against that scourge could, in certain cases, require the adoption of measures intended to protect, in particular, public safety and order and to prevent other criminal offences. With its rigid hierarchical structure and very strict rules and its substantial power of intimidation based on the rule of silence and the difficulty in identifying its followers, the Mafia represented a sort of criminal opposition force capable of influencing public life directly or indirectly and of infiltrating the institutions. It was not therefore unreasonable to consider that its members could, even by their mere presence in the courtroom, exercise undue pressure on other parties in the proceedings, especially the victims and witnesses who had turned state evidence.   In those circumstances, the Court considered that the applicant’s participation at the appeal hearings by videoconference pursued legitimate aims, namely the protection of public order, the prevention of crime, protection of the right to life, freedom and security of witnesses and victims of offences, and compliance with the “reasonable time” requirement in judicial proceedings. In addition, the Court found that the arrangements for the conduct of the proceedings had respected the rights of the defence. It therefore concluded, unanimously, that there had been no violation of Article 6 §§ 1 and 3.   In addition, the fact that the legal classification of the charges brought against the applicant in the two sets of proceedings was similar did not mean that they concerned the same offence or that the charges related to the same events. The Court therefore concluded unanimously that there had been no violation of Article 4 of Protocol No. 7. (The judgment is available only in French.)   Mokrushina v. Russia (no. 23377/02)   Violation of Article 6 § 1 (fairness) The applicant, Valentina Sergeyevna Mokrushina, is a Russian national who was born in 1965 and lives in Moscow.   In June 1999 the applicant unsuccessfully took out proceedings against the vendor of a property she had bought. The vendor appealed against the judgment and a number of hearings were held to which she was not summonsed or summonsed too late.   The applicant complained, in particular, that she was denied the opportunity to attend the examination of the appeal. She relied on Article 6 § 1 (right to a fair hearing).   The Court found that the applicant was informed too late to attend the appeal hearings. It further noted that the appeal court did not examine the question whether the applicant had been duly summonsed and, if she had not, whether the examination of the appeal should have been adjourned. The Court therefore held unanimously that there had been a violation of Article 6 § 1 on account of the domestic authorities’ failure to apprise the applicant of the appeal hearings in good time. She was awarded EUR 1,000 in respect of non-pecuniary damage. (The judgment is available only in English.)   Zakharov v. Russia (no. 14881/03)   Violation of Article 10 The applicant, Aleksandr Vasilyevich Zakharov, is a Russian national who was born in 1947 and lives in the Moscow Region.   In July 2002 he complained in a private letter about the irregular conduct of a civil servant to the deputy Governor of the Moscow Region. He alleged she was using a plot of communal land for private purposes. The civil servant concerned retaliated with a defamation claim. The court found in her favour and the applicant was bound to make a rectification by way of a letter to the Governor and to pay damages.   The applicant complained that his right to impart information was violated. He relied on Article 10 (freedom of expression).   The Court emphasised at the start that the citizen’s right to be able to notify competent State officials about the conduct of civil servants which to them appeared irregular or unlawful, was one of the precepts of the rule of law.   It noted in particular that the applicant did not resort in his letter to abusive, strong or intemperate language, albeit it might be said to have contained a certain number of emotional expressions verging on exaggeration or provocation. Assessing the text of the letter as a whole, the Court found that its contents did not go beyond the limits of acceptable criticism, especially since those limits are wider in respect of civil servants than in relation to private individuals.   Finally, the Court noted that the Russian law on defamation, as it stood at the time, made no distinction between value judgments and statements of fact. The Court considered that the expressions used by the applicant in his letter, such as “outrageous conduct”, “anti-social behaviour”, “ostensibly makes an exemption”, were value judgments that represented the applicant’s subjective opinion of the Head of the Town Council’s immoral conduct. The burden of proof in respect of those expressions was obviously impossible to satisfy.   In the light of those considerations, the Court found that the Russian authorities did not adduce “relevant and sufficient” grounds for the interference with the applicant’s right to impart information and held unanimously that there had been a violation of Article 10. The applicant was awarded the applicant EUR 1,000 in respect of 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 6 § 1 (length)   Two violations of Article 8   Violation of Article 13   Violation of Article 1 of Protocol No. 1 De Blasi v. Italy (no. 1595/02)   Violation of Article 2 of Protocol No. 4 The applicant, Antonino De Blasi, is an Italian national who was born in 1944 and lives in Opera (Italy). He was declared bankrupt in 1996.   The applicant alleged that, following the declaration of bankruptcy, he was deprived of his possessions contrary to Article 1 of Protocol No. 1 (protection of property), that correspondence sent to him had been given to the receiver in breach of Article 8 (right to respect for correspondence), and that he had been unable to leave his residence, contrary to Article   2 of Protocol No. 4 (freedom of movement). In addition, relying on Articles 6 § 1 (right to a fair hearing) and 13 (right to an effective remedy), the applicant complained about the length and fairness of the bankruptcy proceedings and the lack of an effective remedy under Italian law by which to complain of the length of the ineligibilities incurred as a result of having been made bankrupt.     The Court noted that the length of the bankruptcy proceedings, which had to date lasted more than 10 years, had upset the fair balance that should have been struck between the general interest in repaying the creditors and the applicant’s individual interests, namely the right to peaceful enjoyment of his possessions, respect for his correspondence and his freedom of movement. The interference with his rights and freedoms had been disproportionate to the aim pursued. The Court therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1, Article 8 and Article 2 of Protocol No. 4.   Furthermore, the Court considered that, given that the names of bankrupts were entered automatically in the bankruptcy register and that the application of the disqualifications in question was not the subject of any assessment or judicial review, and in view of the length of time before rehabilitation could be obtained, the interference under the Bankruptcy Act with the applicant’s right to respect for his private life was in breach of the Convention. It therefore held unanimously that there had also been a violation of Article 8 in this respect.   Finally, the Court concluded unanimously that there had been a violation of Article 13.   The Court awarded the applicant EUR 13,000 in respect of non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 1 of Protocol No. 1 Capoccia v. Italy (no. 30227/03) De Nigris v. Italy (No. 1) (no. 41248/04) Fendi and Speroni v. Italy (no. 37338/03) Gianazza v. Italy (no. 69878/01) Labbruzzo v. Italy (no. 10022/02) Medici and Others v. Italy (no. 70508/01) Messeni Nemagna and Others v. Italy (no. 9512/04) Notarnicola v. Italy (no. 64264/01) Preziosi v. Italy (no. 67125/01) Spampinato v. Italy (no. 69872/01) In these ten cases, the applicants were all owners of plots of land which were occupied by the authorities with a view to their expropriation and on which building work was begun. In the absence of formal expropriation and compensation, the applicants brought proceedings seeking damages for the unlawful occupation of their land.   The applicants maintained that the occupation of their land had violated their right to peaceful enjoyment of their possessions, guaranteed by Article 1 of Protocol No. 1 (protection of property). In Capoccia, Fendi and Speroni, Gianazza, Notarnicola, Preziosi and Spampinato , they also alleged a violation of Article 6 § 1 (right to a fair hearing).   The Court considered that the applicants’ loss of all ability to dispose of the land, coupled with the lack of a remedy, amounted to a de facto expropriation that was incompatible with their right to the peaceful enjoyment of their possessions. It therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1 in each of these ten cases. It also held that it was unnecessary to examine the complaint under Article 6. The Court considered that the question of the application of Article 41 (just satisfaction) was not ready for decision and accordingly reserved it. (The judgments are available only in French.)   Penescu v. Romania (no. 13075/03   Violation of Article 1 of Protocol No. 1 The applicant, Maria Penescu, is a Romanian and United States national who was born in 1917 and lives in Sherman Oaks (United Kingdom).   In 1996 the applicant brought an action seeking to recover possession of a building comprising six flats in Bucharest which had been nationalised in 1950. She asked that the contracts of sale concluded by the State with the tenants of five of those flats be set aside.     On 18 February 1997 the Bucharest Court of First Instance found that the nationalisation had been unlawful and ordered that the property be returned to the applicant. In the absence of an appeal, this judgment became final. The applicant attempted unsuccessfully to have the contracts of sale for the flats set aside: her action was dismissed on the ground that disputed contracts could only be set aside where both contracting parties had been acting in bad faith, which had not been proved in this case.   The applicant alleged that the sale of the five building to third parties by the State, endorsed by the Romanian courts, had, among other things, amounted to a violation of Article 1 of Protocol No. 1 (protection of property).   The Court noted that the sale of the applicant’s property by the State prevented her from enjoying her right to peaceful enjoyment of her possessions, while no compensation had been awarded to her.   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, at least in theory, a right to compensation equalling the market value of assets which could not be restored. However, the Court noted that Law no. 247/2005 did not currently operate in such a way as to facilitate the actual granting of compensation to former owners who had been deprived of their nationalised buildings and did not take account of the damage sustained prior to the law’s entry into force by persons who had been deprived of their property in this way as a result of the long period when no compensation was available.   Accordingly, the Court considered that the deprivation of the applicant’s possessions, combined with the total absence of compensation, had imposed a disproportionate and excessive burden on her. Consequently, the Court concluded, unanimously, that there had been a violation of Article 1 of Protocol No. 1. It held, unanimously, that Romania was to restore the disputed property to Mrs Penescu within three months of the date on which the Court’s judgment would become final. In the absence of any such restoration, the Government was to pay her EUR 375,000 in respect of pecuniary damage. The Court awarded the applicant EUR 5,000   for non-pecuniary damage. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness) Popea v. Romania (no. 6248/03)   Violation of Article 1 of Protocol No. 1 The applicants, Ionel Lucian Popea, Elena Mihaela Adriana and Lidia Popea, are Romanian nationals; Mr Popea and Ms Adriana also have French nationality. The applicants were born in 1921, 1952 and 1927 respectively and live in Arvert and Fréjus (France) and in Bucharest. In 1996 they brought an action to recover possession of a building which had been nationalised in 1950 and seeking to have the contract of sale between the State and the building’s tenants, the O.M. family, set aside. On 16 May 2000 the Bucharest Court of First Instance upheld the applicants’ action for recovery of possession, holding that their title had priority since the O.M. family’s title had been granted by the State, which had acquired and kept the property by force. Further, on 13   September 2001, the Bucharest Court of Appeal dismissed the appeal lodged by the O.M. family. However, on an appeal for setting aside of a judgment, submitted by the Principal Public Prosecutor, the Supreme Court of Justice dismissed the applicants’ action for recovery of possession and ruled that the disputed contract of sale was not null and void, since the O.M. family’s had been acting in good faith.   The applicants submitted that the overturning of the final judgment in their favour had been in breach of the principle of legal certainty and had infringed their right to the peaceful enjoyment of their possessions. They alleged a violation of Article 6 § 1 (right to a fair hearing) and Article   1 of Protocol No. 1 (protection of property). The Court pointed out that setting aside a final judgment was contrary to the principle of the security of legal certainty. By setting aside final judicial decisions, the Supreme Court of Justice had breached the right to a fair trial, in violation of Article 6 §   1. The Court also noted that the applicants had been deprived of ownership of the property for more than four years and that they had not been granted compensation which reflected the property’s market value in this connection. The infringement of their right to peaceful enjoyment of their possessions had upset the balance that must be struck between the protection of their right of property and the requirements of the general interest. The Court therefore concluded unanimously that there had been a violation of Article 1 of Protocol No.   1. The Court held that Romania was to restore their property to the applicants within three months of the date on which the Court’s judgment would become final. In the absence of any such restoration, the Government was to pay them EUR 105,000 in respect of pecuniary damage. The Court awarded the applicants EUR 5,000   jointly for non-pecuniary damage. (The judgment is available only in French.)   Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Lazarev v. Russia (no. 9800/02) Shapovalova v. Russia (no. 2047/03) Velskaya v. Russia (no. 21769/03)   Stetsenko and Stetsenko v. Russia (no. 878/03) Violation of Article 6 § 1 (fairness)   The five applicants are Russian nationals.   Nikolay Viktorovich Lazarev and Liubov Gennadyevna Shapovalova complained about the lengthy failure to enforce judgments awarding them compensation, due to lack of State funds.   Yelena Leonidovna   Velskaya, and Anatoliy Mikhaylovich Stetsenko and Nina Ivanovna Stetsenko complained that final judgments in their favour were quashed in supervisory review proceedings. In the latter case, the applicants also complained that they had been deprived of their right to effectively participate at the supervisory-review hearing.   The applicants relied on Article 6 § 1 (access to a court). They also relied on Article 1 of Protocol No.   1 (protection of property) with the exception of the applicants in Stetsenko and Stetsenko v. Russia .   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and Article 6 § 1 in the cases of Lazarev v. Russia , Shapovalova v. Russia and Velskaya v. Russia . In the case of Stetsenko and Stetsenko v. Russia the Court held that there had been a violation of Article 6 § 1 on account of the quashing of the final judgments by way of supervisory review and dismissed the remainder of their application.   The Court awarded the applicants the amounts below, in euros, for pecuniary and non-pecuniary damage and for costs and expenses.     Pecuniary damage Non-Pecuniary damage Costs and expenses Lazarev v. Russia (no. 9800/02) 11,500 3,900 350 Stetsenko and Stetsenko v. Russia (no. 878/03) (Anatoliy Stetsenko) 450 2,000 185 Stetsenko and Stetsenko v. Russia (no. 878/03) (Nina Stetsenko) 1,250 2,000 -   The Court held that the finding of a violation in the case of Shapovalova v. Russia constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. In the case of Velskaya v. Russia , the applicant did not submit a claim for just satisfaction and accordingly the Court held that there was no call to make an award on that account. (The judgments are available only in English.)   Length-of-proceedings cases   In the following cases the applicants complained in particular of the excessive length of civil proceedings under Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention. The remainder of the complaints were declared inadmissible.     Violation of Article 6 § 1 (length) Grässer v. Germany (no. 66491/01) Klasen v. Germany (no. 75204/01) Marchenko v. Russia (no. 29510/04) Shelomkov v. Russia (no. 36219/02) Volovich v. Russia (no. 10374/02)     ***   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.