CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 9 novembre 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.   No violation of Article 10 Krone Verlags Gmbh v. Austria (application no 72331/01) The applicant, Krone Verlags GmbH & Co KG, is a limited liability company with its registered office in Vienna. It is the owner of the daily newspaper Neue Kronenzeitung .   In one of its issues in 1997 the applicant company published a one-page article about the alleged harassment of two beauty queens, one of whom alleged that she had been raped. The article began with a statement doubting the truthfulness of the women’s accounts and claimed that they were seeking to make money out of the incident. The article claimed that the statement was made by the daughter of “Miss-maker R from Linz”, an organiser of similar events, and noted this was the “first official comment” on the scandal.   The two beauty contest winners opened a private prosecution against the person who made the statement and in October 2000 she was convicted by Vienna Regional Criminal Court of defamation in a printed medium under Section 111 § 2 of the Criminal Code. At the same time, the court noted that the offence was a media offence which could only be committed through publication and found the applicant company jointly and severally liable for the fine and the costs under Section 35 of the Media Act. The applicant company appealed unsuccessfully.   Subsequently, the two beauty contest winners asked the applicant company to pay the costs of the defamation proceedings. The company paid the costs and then sought reimbursement from the author of the statement. Favoriten District Court partly granted the applicant company’s claim and split the costs between both parties. That decision was upheld by the Regional Court and the Supreme Court.   The Supreme Court argued that the offence was committed via the applicant company and further added that the statements did not come from a reliable source and were, in any case, of no real public interest.   The applicant company complained about its liability under the Media Act, relying on Article 10 (freedom of expression).   The European Court of Human Rights found that the interference at issue had a legal basis and that the law pursued the legitimate aim of protecting the reputation and rights of others.   The Court, in particular,   attached importance   to the fact that the applicant company established the necessary link between the defamatory statements and the public by publishing them. Furthermore, the newspaper placed considerable emphasis on the statements by claiming that they were “first official comment” which undoubtedly attracted the attention of its readers.   The Court therefore found that holding the applicant company liable to pay part of the costs of the defamation proceedings was acceptable and not contrary to the applicant company’s right to freedom of expression. Accordingly, the Court held, unanimously, that there had been no violation of Article 10. (The judgment is available only in English.)   Violation of Article 6 § 1 (fairness) Stojakovic v. Austria (no. 30003/02) The applicant, Milenko Stojakovic, is an Austrian national who was born in 1944 and lives in Linz (Austria). He was the head of the Federal Bacteriological Serological Research Institute in Linz.   In November 1999 the Disciplinary Commission at the Ministry for Work, Health and Social Affairs found him guilty of making sexually harassing statements about some of his employees. The applicant appealed but his complaint was dismissed. In the meantime, the Federal Minister for Work, Health and Social Affairs recalled the applicant from his post and transferred him to a post with a lower grade.   During the appeal proceedings, the applicant asked for a witness to be examined in an oral hearing. The Appeals Commission, however, dismissed the applicant’s appeal without holding a hearing.   He unsuccessfully appealed to the Constitutional Court.   The applicant complained that he was denied an oral hearing. He relied on Article 6 § 1 (access to a court).   The Court found that it could not be said that the applicant had waived his right to an oral hearing and that, according the Court’s case-law, he was, in principle, entitled to a hearing, unless there were exceptional circumstances which justified dispensing with such a hearing. The Court considered that there were no such circumstances in the applicant’s case and accordingly held, unanimously, that there had been a violation of Article 6 § 1.   The applicant was awarded EUR 3,500 for costs and expenses. (The judgment is available only in English.) Violation of Article 5 § 3 Tanko Todorov v. Bulgaria (no. 51562/99)                                         Violation of Article 5 § 4 The applicant, Tanko Zaprianov Todorov, is a Bulgarian national who was born in 1976 and lives in Chalakovi (Bulgaria).   The applicant was arrested on 11 December 1997 and the next day he was charged with murder and detained on remand. He made several appeals for release but they were dismissed. He was initially acquitted on 3 December 2001 and released but was, however, ultimately found guilty of the murder and sentenced to 17 years’ imprisonment.   The applicant complained about the justification and length of his detention and that the domestic courts did not examine all factors relevant to its lawfulness. He relied on Article 5 §§ 3 and 4 (right to liberty and security).   The Court held unanimously that there had been a violation of Article 5 §§ 3 and 4 and awarded the applicant EUR 1,500 for non-pecuniary damage and EUR   500 for costs and expenses. (The judgment is available only in English.)   Two violations of Article 6 § 1 (equity) Sacilor-Lormines v. France (no. 65411/01)                          Violation of Article 6 § 1 (length) The applicant, the Société des Mines de Sacilor-Lormines, is a limited company ( société anonyme ) which has been in voluntary liquidation since March 2000.   The company is a subsidiary of Usinor and was set up in 1978 to take over the concessions and mining leases of the Sacilor iron-ore mines in Lorraine. It later took over other concessions with the result that on the date when it announced that it was to cease mining operations, it held 63 iron-ore mining concessions in Lorraine. As demand for the applicant company’s phosphoric pig iron had slowly dwindled away, it decided in 1991 to halt production.   With a view to the complete cessation of its activity, the applicant company brought administrative proceedings to surrender the concessions which it held, and as part of the surrender process numerous regulatory measures, all contested in the French courts, were imposed upon it. The company also lodged numerous applications seeking annulment of the refusal by the Minister responsible for mining to accept its surrender of several concessions. In the course of those proceedings the Conseil d’Etat gave one opinion and delivered a number of judgments, including one of 19 May 2000 after a deliberation of 26 April 2000.   Relying on Article 6 § 1 (right to a fair hearing), the applicant company complained of the unfairness of the proceedings in the Conseil d’Etat and of the length of the proceedings.   Firstly, in the applicant company’s submission, the fact that one of the members of the Conseil d’Etat , who had participated in the deliberation of 26 April 2000, had been appointed by presidential decree of 26 May 2000 to the post of Secretary General at the Ministry of the Economy, Finance and Industry, was capable of casting serious doubt on the independence of the Conseil d’Etat formation which delivered the judgment of 19 May 2000. The Court was of the opinion that the impugned appointment was capable of casting doubt on the impartiality of the Conseil d’Etat , as during the proceedings in question, or even some time before, one of the members of the formation hearing the case had been approached about taking up a senior position in the very ministry which was opposing the applicant company in a large number of significant disputes. Consequently, the Court held by four votes to three that there had been a violation of Article 6 § 1 in respect of the right to a hearing by an independent and impartial tribunal, on account of the applicant company’s objectively well-founded doubts concerning the Conseil d’Etat formation which delivered the judgment of 19   May 2000.   Secondly, as to the question whether the independence and impartiality of the Conseil d’Etat was undermined by the fact that it exercised judicial functions concurrently with its administrative functions under the Code of Administrative Justice, the Court considered that such a plurality of functions was not contrary to the Convention. It accordingly found that there had been no violation of Article 6 § 1.   In addition, the Court reiterated that the participation, or at least presence, of the Government commissioner ( commissaire du gouvernement ) at the deliberations of the bench of the Conseil d’Etat entailed a breach of Article 6 § 1. It accordingly found, unanimously, that there had been a violation of Article 6 § 1.   Lastly, the Court noted that the impugned proceedings had lasted for some four years and nine months, and for three years and six months. Having regard to the circumstances of the case, it considered that such periods were excessive and did not meet the “reasonable time” requirement. The Court accordingly held, unanimously, that there had been a third violation of Article 6 § 1.   By way of just satisfaction the Court awarded the applicant company EUR 8,000 in respect of non-pecuniary damage and EUR 10,000 for costs and expenses (The judgment is available only in French.)   Violation of Article 6 §§ 1 and 3(d) Kaste and Mathisen v. Norway (nos. 18885/04 and 21166/04) The applicants, Bård Kaste and Per Stian Tveten Mathisen, are Norwegian nationals who were born in 1970 and 1973 respectively and live in Oslo.   In March 2002 the applicants were convicted of possessing over 48 kg of amphetamines which they attempted to import from Germany into Norway. Mr Kaste was also convicted of illegally possessing a firearm. In October 2002 one of the applicants’ accomplices was also convicted in relation to the same offences. The applicants and the accomplice appealed to the Borgarting High Court, which decided to join the proceedings. The accomplice only appealed against his sentence whereas the applicants appealed against other aspects, including the procedure, the assessment of evidence and application of the law with regard to the question of guilt. Both applicants were heard at the appeal hearing but the accomplice declined to give oral evidence. However his depositions given to the police were read out in court. In response to Mr Mathisen’s request to question the accomplice, the High Court held that, having invoked his right to remain silent, the accomplice could not be cross-examined.   The applicants complained about the proceedings before the High Court. They relied on Article 6 §§ 1 (right to a fair trial) and 3(d) (right to obtain attendance and examination of witnesses).   The Court noted that the High Court president decided that since the accomplice had invoked his right to silence, it could not be permitted to question him directly. The Court, however, was not convinced that, had the applicants been given the opportunity to question the accomplice directly, this could not have been reconciled with his right to not answer those questions that might have incriminated him.   The Court observed that the High Court considered that a co-accused could not be considered as a “witness” for the purposes of the provisions of the Convention. The Court, however, made it clear that, where a deposition served to a material degree as the basis for a conviction then, irrespective of whether it was made by a witness in the strict sense or by a co-accused, it constituted evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) applied.   The Court found that the applicants were not given an adequate and proper opportunity to contest the statements on which their conviction was based and that they were therefore denied a fair trial.   The Court held unanimously that there had been a violation of Article 6 §§ 1 and 3(d) and awarded Mr Kaste EUR 7,800   and Mr Mathisen EUR 5,600 for costs and expenses. (The judgment is available only in English.)   Melinte v. Romania (no. 43247/02)   Violation of Article 3 The applicant, Ciprian-Petru Melinte, is a Romanian national who was born in 1977 and lives in Iaşi (Romania).   On 3 December 1998 he was remanded in custody in Iaşi Prison, on suspicion of raping a minor. In September 1999 he complained that he had been subjected to ill-treatment by Colonel B., the governor of Iaşi Prison, between 1 and 7 July 1999. When interviewed by the military prosecutor in October 2001 he reiterated his accusations against Colonel B., who, he claimed, had regularly struck him on the knees with a hammer and, in particular, had deprived him of water, food and fresh air.   After questioning Colonel B. and the other detainees in the applicant's cell, and after examining his medical record, the military prosecutor decided to discontinue the proceedings in December 2001.   In the meantime, in February 2000, the applicant was sentenced to seven years’ imprisonment for rape of a minor. His conviction was upheld on appeal.   The applicant complained in particular that he had been subjected to ill-treatment while detained in Iaşi Prison and that there was no effective investigation of his complaint, contrary to Article 3 (prohibition of inhuman and degrading treatment).   As regards the allegation of ill-treatment, the Court did not find anything in the evidence adduced by the parties that was capable of substantiating the applicant’s allegations. He had not provided the slightest evidence in support of his claims, such as a medical certificate showing that he had sustained injuries or that he had not been provided with medical care while in prison. Accordingly, the Court found unanimously that there had been no violation of Article 3 concerning the allegations of ill-treatment.   As to the inquiry conducted in the present case, the Court referred back to its previous case-law to the effect that military prosecutors who were called upon to investigate a criminal complaint for ill-treatment lodged against military officers of the prison service were not independent. In that connection the Court noted that the status of officers attached to the prison service had undergone a reform in 2004, with the result that all prison staff were now “public officials” and any criminal proceedings against them would fall under the jurisdiction of the ordinary prosecution services and courts.   Having regard to the legislation in force at the material time, the Court considered that the investigation conducted by the authorities in response to the applicant's complaint had not been effective. It accordingly found unanimously that there had been a violation of Article 3.   The Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage claimed by the applicant. (The judgment is available only in French.)   Violation Article 6 § 1 (fairness) Düzgören v. Turkey (no. 56827/00)                    Violation Article 10 The applicant, Koray Düzgören, is a Turkish national who was born in 1947 and lives in London. He is a journalist.   In June 1998 he was indicted by the military public prosecutor at the General Staff Court in Ankara for inciting others to evade military service after he had been found distributing leaflets outside Ankara State Security Court. He had also handed the leaflet to the public prosecutor at the court together with a petition stating that he should be prosecuted for having committed a crime. The leaflet contained, in particular, the press statement of a conscientious objector, giving the reasons why he had refused to do his compulsory military service. The applicant was subsequently sentenced to two month’s imprisonment and fined.   The applicant complained, in particular, that the General Staff Court which tried him could not be regarded as an independent and impartial tribunal, given the presence of two military judges and an officer on the bench. He further complained that his criminal conviction had infringed his right to freedom of expression. He relied on Article   6 § 1 (right to a fair trial) and Articles 10 (freedom of expression) and 13 (effective remedy).   As in a previous case, the Court found that the applicant’s concerns regarding the independence and impartiality of the General Staff Court could be regarded as objectively justified. It therefore held unanimously, that there had been a violation of Article 6 § 1.     The Court considered that, although the tone of the article was hostile to military service, it did not encourage violence, armed resistance or insurrection and did not constitute hate speech. Furthermore, the offending leaflet was distributed in a public place in Istanbul, i.e., not close to a military base, and it did not seek, either in its form or in its content, to precipitate immediate desertion. In the Court’s view, those were the essential factors to be taken into account when assessing whether the measures taken by the authorities were strictly necessary.   Furthermore, the Court also considered the applicant’s sentencing, in particular the two months’ imprisonment was a harsh penalty.   The Court concluded that the reasons given by the General Staff Court were not sufficient to justify the interference with the applicant’s right to freedom of expression and that the interference was not “necessary in a democratic society”. Accordingly it held, unanimously, that there had been a violation of Article 10.   The applicant was awarded EUR 2,000 for non-pecuniary damage and EUR   1,500 for costs and expenses. His complaint under Article 13 was declared inadmissible. (The judgment is available only in English.)   Violation Article 8 Tavlı v. Turkey (no. 11449/02) The applicant, Kazım Tavlı, is a Turkish national who was born in 1962 and lives in Dortmund (Germany).   In   September 1981, soon after his wife gave birth, the applicant filed an action for rejection of paternity. His claim however was dismissed, the court relying, in particular, on the results of a blood test which concluded that he could be the child’s father. In March 1999 he undertook a DNA test which proved that he was not the father. He was, nevertheless, unable to have the previous decision rectified, the courts holding that scientific progress could not be used as a ground to reopen the proceedings according to the Code of Civil Procedure.   The applicant complained that although he had the scientific evidence to the effect that he was not the father of the child born to his former wife, he could not have the issue determined by a court. He relied on Article 8 (right to respect for private and family life).   The Court considered that a fair balance had not been struck between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of the biological evidence. The Court was of the opinion that domestic courts should interpret the existing legislation in light of scientific progress and its social repercussions.   The Court therefore concluded that the Turkish State failed to secure to the applicant respect for his private life and held unanimously that there had been a violation of Article 8.   The applicant was awarded EUR 5,000 for non-pecuniary damage. (The judgment is available only in English.)     Violation of Article 6 § 1 (fairness) Belukha v. Ukraine (no. 33949/02)   No violation of Article 6 § 1 (length)            The applicant, Zoya Nikolayevna Belukha, is a Ukrainian national who was born in 1957 and lives in Artemivsk (Ukraine).   In August 1997 she was transferred from her position of deputy director of a Joint Stock Company to the position of economist.   In September 1997 she instituted proceedings before Artemivsk Town Court seeking reinstatement to her former post. During the proceedings she challenged the judge and the court, claiming that they lacked impartiality as the company had carried out work on the court’s new building free of charge. The case was closed in April 2003 when the Supreme Court rejected her request to appeal in cassation.   The applicant complained about the length and the fairness of the proceedings. She relied, in particular, on Article   6   §   1 (right to a fair hearing within a reasonable time).   The Court observed that the Government did not contest the applicant’s submissions that the President of the Artemivsk Court, who sat alone as a first instance judge in the applicant’s case, and whose decision was upheld by the higher courts, demanded and accepted certain assets from the defendant company for free. In the Court’s view, in those circumstances the applicant’s fears that the President lacked impartiality could be held to be objectively justified. The Court therefore held unanimously that there had been a violation of Article 6 § 1 as regards the requirement of an impartial tribunal.   The Court noted that the proceedings in question had lasted four years and five months. Having regard to the circumstances of the case, it considered that such a length of time was not excessive and did not fail to satisfy the “reasonable time” requirement. Accordingly, the Court concluded unanimously that there had been no violation of Article 6 § 1 as regards the length of proceedings.     The remainder of her complaints was declared inadmissible. The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded her EUR 70 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 1 of Protocol No. 1 Suciu Arama v. Romania (no. 25603/02) Ungureanu v. Romania (no. 23354/02) Marilena Suciu Arama is a Romanian national who was born in 1942 and lives in Bucharest. In 1996 the applicant brought proceedings to establish her title to a block of flats in Bucharest which had been nationalised in 1950. The Romanian courts gave judgment in her favour, but in the meantime the State had sold one of the flats to the occupier. The applicant sought annulment of the contract of sale, but without success. In 2003 the applicant purchased the disputed flat for EUR 9,827.   Andrei Ungureanu and Cornelia Mariana Ungureanu are Romanian nationals who were born in 1942 and 1945 respectively and live in New York. In 1993 the applicants brought proceedings to establish their title to a flat in Bucharest which had been confiscated in 1986. Their action was initially dismissed. When they brought a second action to recover the property the Romanian courts ordered the relevant administrative authority to return it. The applicants unsuccessfully sought annulment of the contract of sale by which the State had sold the flat to third parties.   In the above two cases the applicants alleged that the sale of their property to third parties by the State, which had been validated by the Romanian courts, breached Article 1 of Protocol No.   1 (protection of property) and Article 6 § 1 (right to a fair hearing).   The Court held unanimously in both cases that there had been a violation of Article 1 of Protocol No.   1. As to the complaint under Article 6, it held that it was inadmissible in the case of Ungureanu and that there was no need to examine it separately in the case of Suciu Arama .   In the Suciu Arama case, the Court awarded the applicant EUR 14,000 for pecuniary damage and EUR 1,400 for non-pecuniary damage. In the Ungureanu case, the Court held that Romania had to return the disputed flat to the applicants within three months from the date on which this judgment became final, failing which the State would have to pay them EUR   150,000 in respect of pecuniary damage. The Court also awarded them EUR 5,000 for non-pecuniary damage and EUR 2,784 for costs and expenses. (The judgments are available only in French.)   Kavak v. Turkey (no. 69790/01)           Violation of Article 6 § 1 The applicant, Mehmet Cemal Kavak, is a Turkish national who was born in 1966 and lives in Istanbul. At the material time he was the chairman of the local section of HADEP (the People’s Democracy Party) in Bayrampaşa (Istanbul).   At an extraordinary general meeting called by HADEP in Istanbul in December 1997 the applicant made a speech at the end of which he is said to have shouted: “Long live the PKK!” (“ Biji PKK” ), while making the victory sign with his hand. On 19   October 1999 Istanbul State Security Court sentenced him to three years and nine months’ imprisonment for lending aid and assistance to the PKK.   Relying on Article 6 (right to a fair trial), the applicant complained that the proceedings against him were unfair, in particular on account of the presence of a military judge on the bench of the State Security Court which had tried and convicted him. He further alleged that his conviction had, in particular, entailed a violation of Article 10 (freedom of expression).   The Court held unanimously that there had been a violation of Article 6 § 1 as regards the complaint relating to the lack of independence and impartiality of the State Security Court. As to the other complaints about the unfairness of the proceedings, the Court reiterated that a court whose lack of independence and impartiality had been established could not in any circumstances guarantee a fair trial to the persons subject to its jurisdiction, and accordingly considered that it was not necessary to examine them. Lastly, it decided that it did not need to examine the Article 10 complaint separately.   The Court considered that the finding of a violation of the Convention constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicant and awarded him EUR 2,500 for costs and expenses, less the sum of EUR 715 he had received by way of legal aid from the Council of Europe. (The judgment is available only in French.)   Violation of Article 6 § 1 Violation of Article 1 of Protocol No. 1 Volokitin v. Russia (no. 374/03) Bagriy and Krivanich v. Ukraine (no. 12023/04) Fyodorov v . Ukraine (no. 43121/04) Negrich v. Ukraine (no. 22252/02) Vorona v. Ukraine (no. 44372/02) The first applicant is a Russian national, the other five are Ukrainian nationals. They all complained about the lengthy non-enforcement of judgments in their favour and that their right to the peaceful enjoyment of their possessions had been violated. They relied on Article 6 § 1 (access to a court) and Article 1 of Protocol No. 1 (protection of property). In the case of Negrich v. Ukraine the applicant also relied on Article 8 (right to respect for private and family life), and the applicant in Vorona v. Ukraine also invoked Articles 2 (right to life) and 4 (prohibition of forced labour).   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. It further noted that the judgments in question were not enforced for years, a situation for which the Governments had not provided any plausible justification.   The Court held unanimously there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 and awarded the applicants the overall sums set out below, expressed in euros. In the case Bagriy and Krivanich v. Ukraine , the Government was also to pay the judgment debt still owed to Mr Bagriy.   (The judgments are available only in English.)     Pecuniary damage Non-pecuniary damage Costs and expenses Volokitin v. Russia (no. 374/03)   2,700   Bagriy and Krivanich v. Ukraine - 800 100 Fyodorov v . Ukraine 50 500 - Negrich v. Ukraine - 2,300 - Vorona v. Ukraine - 1,300 -     Length-of-proceedings cases   In the following cases the applicants complained under Article 6 § 1 (right to a fair hearing within a reasonable time) of the excessive length of civil proceedings. The applicant in Varacha v. Slovenia also complained under Article 13 (effective remedy).     Violation of Article 6 § 1 (length) Tengerakis v. Cyprus (no. 35698/03) Petan v. Slovenia (no. 66819/01) Violation of Article 6 § 1 (length) Varacha v. Slovenia (no. 9303/02)               Violation of Article 13   Vehbi Ünal v. Turkey (no. 48264/99)         Violation of Article 6 § 1   ***   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.