CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 16 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.     Hajiyev v. Azerbaijan (application no 5548/03)   Violation of Article 6 § 1 (fairness) The applicant, Fehmin Ahmedpasha oglu Hajiyev, is an Azerbaijani national who was born in 1959 and lives in Baku (Azerbaijan).   The applicant was an activist in the National Front, an organisation which played a key role in the country’s struggle for independence from the Soviet Union. In 1992, when the National Front came into power, he was appointed to a number of high-ranking military posts and in 1993 he became the Commander of the Special Police Force.   After the National Front lost political power in 1993, he was arrested and detained on remand. In August 1995 the Military Chamber of the Supreme Court sentenced him to ten years’ imprisonment for attempted murder, among other things. In June 1996 the same court convicted him for failing to resist the Armenian occupation of the town of Khojaly and sentenced him to 15 year’s imprisonment, to run concurrently. Under the old criminal procedure law applicable at that time, both Supreme Court judgments were final and not subject to appeal.   In 2000 a new Code of Criminal Procedure was adopted. Before its entry into force Parliament passed a transitional law which allowed appeals to be lodged against final judgments delivered under the old criminal procedure. Two years after lodging an appeal, the Court of Appeal informed him in a letter dated 31 March 2004 that, due to the new Code of Criminal Procedure which had come into force, the court could not deal with his case and advised him to appeal to the Supreme Court.   He was subsequently pardoned and released from prison.   The applicant complained, in particular, that he was denied a fair and public hearing because the Court of Appeal failed to examine his appeal. Furthermore, he complained that he had suffered discrimination because the court had examined the appeals of three other people who had been in a situation similar to his. He relied on Articles 6 § 1 (access to court) and 14 (prohibition of discrimination) of the European Convention on Human Rights.   The Court noted that the transitional law provided for a right to have a case re-examined by “the appellate court or the Supreme Court”. Given that wording, the applicant could not reasonably be expected to understand that his appeal fell within the competence of the Supreme Court and not the Court of Appeal. Furthermore, the applicant was not informed of that fact for more than two years after lodging his appeal. On the contrary, in response to his enquiries, he was led to believe that his case was actually pending examination in the Court of Appeal.   The Court concluded that, given the ambiguity of the transitional law and the absence of a clear domestic judicial interpretation of its relevant provisions, as well as the existence of at least three domestic precedents, it was reasonable for the applicant to believe that it was for the Court of Appeal to examine his appellate complaint.   The Court considered that it was for the Court of Appeal to take steps to ensure that the applicant enjoyed the right to which he was entitled under the Transitional Law and that the applicant should not have been required to apply to the Supreme Court.   Concluding that the applicant’s right of access to a court had been restricted the Court held unanimously that there had been a violation of Article 6 § 1.   The Court considered that no separate examination was necessary of the applicant’s complaint under Article 14. The Court awarded the applicant 3,000 euros EUR in respect of non-pecuniary damage and EUR 2,500 for costs and expenses (less EUR 850 granted by way of legal aid from the Council of Europe). (The judgment is available only in English.)   Boneva v. Bulgaria (no. 53820/00)   Violation of Article 5 § 3 The applicant, Mariana Yordanova Boneva, is a Bulgarian national who was born in 1967 and lives in Kirkovo (Bulgaria). At the time, she was the head of the financial department of the Kirkovo municipality.   On 30 September 1999 she was charged with misappropriation of funds and abuse of office and detained on remand. Eight days later, after having appealed against her detention, she was brought before Kurdzhali Regional Court. The applicant was eventually acquitted of the charges against her.   The applicant complained that she was not brought promptly before a judge or other officer authorised by law to exercise judicial power. She relied on Article 5 § 3 (right to liberty and security).   The Court held unanimously that there had been a violation of Article 5 § 3. She was awarded the applicant EUR 500 in respect of non-pecuniary damage and EUR 750 for costs and expenses. (The judgment is available only in English.)     Violation of Article 6 § 1 (length)   Violation of Article 13   No violation of Article 8 Karov v. Bulgaria (no. 45964/99)   No violation of Article 13 The applicant, Sava Kolev Karov, is a Bulgarian national who was born in 1957 and lives in Burgas (Bulgaria). He was a detective inspector in the Burgas Police crime squad.   In August 1995 the applicant was charged with accepting or soliciting bribes. He was temporarily suspended from duty on 3 August 1995, and payment of his wages was also withheld. On two occasions, in February 1996 and in December 2003, he was found guilty as charged, but the convictions were set aside on appeal on account of procedural defects. The case is apparently still pending at the preliminary investigation stage.   During the proceedings, as the suspension remained in force, the applicant handed in his resignation on several occasions and unsuccessfully lodged appeals against the minister’s tacit refusals to accept it. In May 2000 the suspension order was lifted and he was reinstated in the national police force.   The applicant complained about the length of the criminal proceedings against him and that he had been suspended without pay and prevented from resigning while the proceedings were pending. He relied in particular on Article 6 § 1 (right to a fair hearing within a reasonable time), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy) and Article 38 (adversarial examination of the case).   The Court observed that, at the time of the most recent correspondence from the parties, in April 2005, the proceedings in question had already lasted nine years and nine months. Having regard to the circumstances of the case, it considered that such a length was excessive and did not satisfy the “reasonable-time” requirement. The Court therefore held unanimously that there had been a violation of Article 6 § 1.   Since the applicant had not had an effective remedy under Bulgarian law in respect of his complaint concerning the excessive length of the criminal proceedings, the Court held unanimously that there had been a violation of Article 13 taken together with Article 6 § 1.   As to the applicant’s inability to occupy his position as a civil servant or to find other employment for a certain period, the Court pointed out that such rights were not in principle guaranteed by the Convention. Even supposing that there had been interference with the applicant’s “private life”, the restrictions in question had been imposed on him as temporary measures in the course of criminal proceedings. All criminal proceedings entailed some consequences for the private and family life of the individual concerned. The Court therefore held unanimously that there had been no violation of Article 8, and no violation of Article 13 taken together with Article 8.   The Court also found that Bulgaria had not failed to comply with its obligations under Article 38.   By way of just satisfaction, the Court awarded the applicant EUR 5,000 for non-pecuniary and pecuniary damage and EUR 1,875 for costs and expenses. (The judgment is available only in French.)   Spasov v. Bulgaria (no. 51796/99)   Violation of Article 5 §§ 3 and 4 The applicant, Veselin Petrov Spasov, is a Bulgarian national who was born in 1969 and lives in Plovdiv.   On 15 October 1997 the applicant was arrested and detained on remand on charges relating to murder. On 1 February 2000 he was convicted of robbery and murder and was sentenced to 17 years imprisonment. That judgment was subsequently quashed on 13 June 2000. The applicant was remanded in custody while his case was re-heard and on 9 July 2001 he was found guilty for the second time.   During his detention he made several pleas for release, two of which were never heard, and the others were dismissed either on unspecified grounds or due to the seriousness of the offences with which he had been charged.   The applicant complained, in particular, that his detention lasting over three years and four months was excessively lengthy and unjustified. 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 on account of the excessive length of, and lack of justification for, the applicant’s continued detention on remand, and a violation of Article 5 § 4 on account of the limited scope, or lack, of judicial review of the lawfulness of the applicant’s detention on remand. The Court awarded the applicant EUR 1,500 in respect of non-pecuniary damage and EUR   500 for costs and expenses. (The judgment is available only in English.)   Čiapas v. Lithuania (no. 4902/02)   Violation of Article 8 The applicant, Rolandas Čiapas, is a Lithuanian national who was born in 1966 and is currently serving a sentence at Marijampolė Prison (Lithuania).   In November 2000 the applicant was arrested in the context of criminal proceedings for robbery and blackmail and detained on remand at Šiauliai Remand Prison. Between 19 November 2001 and 1 April 2003 the applicant’s correspondence was censured to prevent him from influencing witnesses and victims in the criminal proceedings.   The applicant complained, in particular, about the censorship of his correspondence with private individuals. He relied on Article 8 (right to respect for correspondence).   The Court held unanimously that there had been a violation of Article 8 and awarded the applicant EUR 1,000 in respect of non-pecuniary damage. (The judgment is available only in English.)   Vaivada v. Lithuania (nos. 66004/01 and 36996/02) Violation of Article 5 §§ 1 and 4 The applicants, Valdas Vaivada and his uncle, Raimondas Vaivada, are Lithuanian nationals.   On separate dates in July and August 1997, they were arrested in the context of criminal proceedings and detained on remand. Their detention was prolonged several times, the last order expiring on 1 March 1998. The applicants however remained in detention until 15 April 1998, when Klaipėda Regional Court committed the applicants for trial, stating that they should remain in detention until the adoption of a judgment in the case. Valdas Vaivada was ultimately convicted of attempted robbery and Raimondas Vaivada of murder, amongst other things.   They complained in particular that their detention on remand from 1 March to 15 April 1998 had been unlawful and that they had been unable to contest the lawfulness of their detention until 1 January 1999 due to the statutory bar under the former Code of Criminal Procedure. They relied on Article 5 §§ 1 and 4 (right to liberty and security).   The Court held unanimously that there had been a violation of Article 5 §§ 1 and 4. No claim for damages or legal costs having been made by the applicants, the Court held that it was not required to rule under Article 41 of the Convention. (The judgment is available only in English.)   Dima v. Romania (no. 58472/00)   Violation of Article 6 § 1 (fairness) The applicant, Victor Dima, is a Romanian national who was born in 1953 and lives in Bucharest. A graduate of the Institute of Plastic Arts in Bucharest, at the material time he was serving as an officer in the Romanian army and working in the Defence Ministry’s plastic arts studio.   After the fall of the Communist regime in December 1989, the Romanian authorities decided to adopt a new State emblem. The design produced by the applicant was approved by Parliament and published in the Official Gazette in 1992. His name was published with the indication that he was the “graphic designer”. In 1996 the applicant brought proceedings against a number of companies, including the State-owned company responsible for mintage of Romanian coins, seeking to obtain from them the statutory percentage of the profits from the reproduction of his design. His applications were dismissed by the ordinary courts. The applicant appealed on points of law, arguing in particular that the expert report on the basis of which the courts had dismissed his application was invalid. On 17 October 2000 the Supreme Court of Justice dismissed the applicant’s appeal without addressing that argument.   The applicant complained that the proceedings to which he had been a party had been unfair, particularly on account of the failure of the Supreme Court of Justice to address one of his grounds of appeal. He relied on Article 6 § 1 (right to a fair hearing).   The applicant’s ground of appeal concerning the invalidity of an expert report had, in view of its relevance and its impact on the outcome of the proceedings, required a specific and express reply. In the absence of such a reply, it was impossible to ascertain whether the Supreme Court had simply neglected to deal with that argument or whether it had intended to dismiss it and, if so, for what reasons. In those circumstances, the Court considered that the applicant had not had a fair hearing. It therefore held unanimously that there had been a violation of Article 6 § 1 and considered that it was not necessary to examine the other complaint submitted by the applicant under that article. The Court awarded Mr Dima EUR 2,000 for non-pecuniary damage. (The judgment is available only in French.)   Dragne and Others v. Romania (no. 78047/01)   Just satisfaction The applicants, Filofteia Dragne, Smaranda Branescu, Smaranda Matei, Maria Neagoe, Iulia Orban and Vasile Galbeneanu, are Romanian nationals who were born in 1940, 1942, 1947, 1933, 1938 and 1936 respectively. They live in Piteşti, Voineşti, Câmpulung Muscel, Movileni and Călimăneşti (Romania).   The applicants brought proceedings to recover possession of a plot of land of 33.5 hectares that they had inherited from their father. Their claims were upheld in judgments of 1995, 1996 and 1997, which ordered the return of the land to the applicants and, among other things, awarded them compensation of more than 97 million Romanian lei in respect of the damage caused by their inability to farm the disputed land. Despite their efforts, those judgments were not enforced.   The applicants complained of the failure by the authorities to enforce those final court decisions. They relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   In a judgment of 7 April 2005 the European Court of Human Rights found that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1. It considered that the question of just satisfaction was not ready for decision.   In today’s judgment concerning just satisfaction, the Court decided unanimously to award the applicants jointly EUR 9,000   for non-pecuniary damage. (The judgment is available only in French.)   Klimentyev v. Russia (no. 46503/99)   No violation of Article 6 (fairness)    The applicant, Andrey Anatolyevich Klimentyev, is a Russian national who was born in 1954 and lives in Nizhniy (Russia).   In March 1995 criminal proceedings were brought against him for his involvement in a number of economic crimes. He was ultimately convicted of embezzlement and bribery, among other things, by Nizhniy Novgorod Regional Court and sentenced to six years’ imprisonment and the confiscation of part of his property. The applicant’s conviction was based on numerous documentary items including contractual papers reflecting the operation of sham companies owned and run by the applicant as well as oral and written evidence given by more than 35 witnesses and various expert examinations.   The applicant complained about the unfairness of criminal proceedings against him. In particular he alleged that he had been unable to question some witnesses whose statements had been read out in court and to take part in the ordering of expert examinations. He further alleged that the case-file lacked translations of certain documents, that he had been denied proper access to some of the documents in the case-file. He also maintained that the first instance court had failed to furnish him with an amended copy of the Regional Court’s judgment, and that he had been unable to replace a lawyer who fell sick at one of the hearings. He relied on Article 6 §§ 1 and 3 (b), (c) and (d) (right to a fair trial).   Having examined the arguments of the parties, the Court found that the criminal proceedings against the applicant were not in breach of the Convention and held unanimously that there had been no violation of Article 6 with regard to any of the applicant’s complaints. (The judgment is available only in English.)   Zaytsev v. Russia (no. 22644/02)   No violation of Article 6 (fairness) The applicant, Yuriy Mikhaylovich Zaytsev, is a Russian national who was born in 1977 and lives in Novomoskovsk (Russia).   On 21 September 2001 Novomoskovskiy Town Court of the Tula Region convicted the applicant, a school teacher, of ill-treating his pupils and sentenced him an 18 months’ suspended sentence. The applicant unsuccessfully appealed against the judgment. He was not present at the appeal hearing.   On 27 June 2005 the Presidium of the Tula Regional Court, having examined the case under the supervisory review procedure, quashed the appeal court’s judgment and remitted the case for a fresh examination. It found that the examination of the applicant’s appeal in his absence had violated his defence rights.   On 20 July 2005 Tula Regional Court examined the case on appeal. The applicant was notified of the hearing, but did not appear. The appeal court set aside the judgment of 21 September 2001 and terminated the criminal proceedings against the applicant on account of the expiry of the statutory time-limits.   The applicant alleged, in particular, that the proceedings before the trial court were unfair and that he was not notified of the hearing on appeal. He relied on Article 6 §§ 1 and 3 (c) (right to a fair trial).   The Court noted that on 27 June 2005 the Presidium of the Tula Regional Court quashed the applicant’s final conviction on the ground that the examination of his appeal in his absence, without his having been duly notified of the hearing, had violated his right to a defence. Furthermore, the Presidium remitted the applicant’s case for a new appeal examination and that this time the applicant was duly notified of the appeal hearing. The Court therefore found that the applicant then ceased to be a victim of the alleged violation of his rights under Article 6.   The Court also found there was no indication of an infringement of the applicant’s defence rights or of the principle of equality of arms. Accordingly, the Court held unanimously that there had been no violation of Article 6.   The Court held unanimously that there had been no violation of Article 6. (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 Immobiliare Podere Trieste s.r.l. v. Italy (no. 19041/04) Rita Ippoliti v. Italy (no. 162/04) Trapani Lombardo and Others v. Italy (no. 25106/03) In these three cases the applicants owned land which was occupied by the authorities with a view to its 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 complained under Article 1 of Protocol No. 1 (protection of property) and Article 6 § 1 (right to a fair hearing) of the occupation of their land.   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 and that it was not necessary to examine the complaint under Article 6 § 1. 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.)   Davidescu v. Romania (no. 2252/02)   Violation of Article 1 of Protocol No. 1 The applicant, Ion Ilus Davidescu, is a Romanian national who was born in 1943 and lives in Sinaia (Romania).   In 1997 the applicant brought proceedings for the recovery of possession of a block of flats in Bucharest which had been nationalised in 1950. The Romanian courts gave judgment in his favour, but the State had sold the three flats to the occupiers. The applicant brought a number of actions for annulment of the contracts of sale, but they were all unsuccessful.   The applicant alleged that the sale of his property to third parties by the State, which had been validated by the Romanian courts, had infringed Article 1 of Protocol No. 1 (protection of property) in particular. He also complained under Article 6 § 1 (right to a fair hearing) of the unfairness of the proceedings for the annulment of the contracts of sale.   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and that it was not necessary to examine separately his complaint under Article 6 § 1. It held that Romania had to return the property to Mr Davidescu within three months from the date on which the judgment became final, failing which the State would have to pay him EUR   130,000 for pecuniary damage. The Court also awarded the applicant EUR 6,000 for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness) Kondrashova v. Russia (no. 75473/01)   Violation of Article 1 of Protocol No. 1 The applicant, Lyutsiya Ivanovna Kondrashova, is a Russian national who was born in 1939 and lives in Petrozavodsk (Russia).   The applicant complained that a final judgment in her favour was quashed in supervisory review proceedings, relying on Article 6 § 1 (right to a fair hearing) (and Article 1 of Protocol No. 1).   The Court noted that a final and binding judgment in the applicant’s favour was set aside by a higher court in supervisory review proceedings, following an application by a public prosecutor, whose power to make such applications was not subject to any time-limit, so that judgments were liable to challenge indefinitely.   As a result, the applicant had had to endure legal uncertainty for a long period after the final judgment was quashed. There had therefore been a breach of the principle of legal certainty and of the right of access to a court in the applicant’s case. The Court therefore held, unanimously, that the setting aside of the judgment in supervisory review proceedings violated Article 6 § 1.   The Court recalled that the sums awarded to the applicant by the judgment in question could be considered a possession. Quashing the judgment after it had become final therefore constituted an interference with the applicant’s right to the peaceful enjoyment of her possession.     There being no public interest defence justifying that interference, the Court also held, unanimously, that there had been a violation of Article 1 of Protocol No 1.   The applicant was awarded 92,286.60 Russian roubles (RUR) (approximately EUR 2,706) for pecuniary damage, EUR 500 for non-pecuniary damage and RUR 15,000 (approximately EUR 440), less EUR 398 (already paid in legal aid) for costs and expenses. (The judgment is available only in English.)     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.     Violation of Article 6 § 1 (length) Mužević v. Croatia (no. 39299/02) Guţǎ v. Romania (no. 35229/02)   ***   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.