CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 9 janvier 2007

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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.     Violation of Article 6 § 1 (length)   Violation of Article 8 Kříž v. the Czech Republic (application no 26634/03) Mezl v. Czech Republic (no. 27726/03) The applicants, Vaclav Kříž and Oldřich Mezl, are Czech nationals who were born in 1953 and 1947 respectively and live in Prague.   Mr Kříž got divorced in July 1991 and his ex-wife gave birth to a boy in September of that year. In October 1991 the applicant asked the Czech courts to determine his right of contact in respect of the child.   Mr Mezl has a daughter who was born in 1986 during his marriage. After his divorce, he applied to the Czech courts in 1993 for an order to establish his parental responsibility.   The applicants both complained about the length of the proceedings concerning their right of contact, and, in Mr Mezl’s case, his parental responsibility. They further complained of their prolonged inability to secure the enforcement of the decisions granting them rights of contact, during which time they had thus been prevented from seeing their children. They relied on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights   The Court held, unanimously in both cases, that there had been a violation of Article 6 § 1 on account of the excessive length of the proceedings, that is to say nine years in the case of Mr Kříž and, to date, over eight years and three months in Mr Mezl’s case.   In the Kříž case, the Court took note of the time that had elapsed between the application in December 1994 for the enforcement of the decision granting the applicant a right of contact and the first meeting between the applicant and his son, which took place on 23 May 2001 when the child was nearly ten years old. In the meantime the activity of the Czech authorities had consisted merely in some unsuccessful attempts to make contact with the mother and in the imposition of fines on her, which proved ineffective. The courts had confined themselves to ordering penalties and for many years had taken no steps with a view to creating the necessary conditions for the enforcement of the applicant’s right of contact. In those circumstances the Court held, by six votes to one, that there had been a violation of Article 8.   In the Mezl case, the Court noted with astonishment that the applicant’s right of contact had practically remained undetermined for almost two years, from 1995 to 1997. Subsequently, while the court, in 1998, initiated proceedings proprio motu with a view to a change in the custody arrangements, no decision was given in those proceedings until the applicant’s daughter reached her majority. The Court was of the opinion that, while the applicant’s inability to exercise his right of contact could primarily be attributed to a manifest refusal by the mother, and later by the child under her mother’s influence, the authorities should have taken adequate action against the mother for her lack of cooperation. Under those circumstances, the Court held unanimously that there had been a violation of Article 8.   By way of just satisfaction, the Court awarded each of the applicants EUR 10,000 in respect of non-pecuniary damage. In addition, for costs and expenses, it awarded Mr Kříž EUR 2,000 less the sum of EUR 872 he had received by way of legal aid from the Council of Europe, and Mr Mezl EUR 1,200 less the sum of EUR 398 he had received (The judgments are available only in French.)   Uoti v. Finland (no. 61222/00)   Violation of Article 6 § 1 (length) The applicant, Kari Uoti, is a Finnish national who was born in 1962 and lives in Helsinki.   He was arrested on 8 August 1994 and on 21 March 2006 he was convicted of aggravated fraud. His case is currently pending before the Court of Appeal.   The applicant complained about the length of the proceedings. He relied on Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention.   The Court held unanimously that there had been a violation of Article 6 § 1. The Court awarded the applicant EUR 5,220.24 in respect of costs and expenses and reserved its decision on the applicant’s claims for non-pecuniary damage for a later date. (The judgment is available only in English.)     Violation of Article 6 § 1 (fairness) Arnolin and Others v. France (nos. 20127/03, 31795/03, 35937/03, 2185/04, 4208/04, 12654/04, 15466/04, 15612/04, 27549/04, 27552/04, 27554/04, 27560/04, 27566/04, 27572/04, 27586/04, 27588/04, 27593/04, 27599/04, 27602/04, 27605/04, 27611/04, 27615/04, 27632/04, 34409/04 and 12176/05)     Violation of Article 1 of Protocol No. 1 Aubert and Others v. France (nos. 31501/03, 31870/03, 13045/04, 13076/04, 14838/04, 17558/04, 30488/04, 45576/04 and 20389/05) The 188 applicants are all French nationals, except for one Moroccan national. They are currently, or were formerly, employed as special-education teachers, counsellors, instructors, clinical psychologists, coordinators or night staff, in specialised institutions run by associations under State supervision.   Their work included night duty, for which they had to be available in a “standby” room to respond to any incidents or requests by residents. Under the 1966 collective agreement applicable to institutions and services for people with disabilities, the applicants were only to receive partial remuneration for the working time in question. Considering that that was nevertheless actual work warranting full-time remuneration, the applicants appealed to the French courts.   While most of their cases were still pending, Law no. 2000-37 of 19 January 2000 entered into force. That new legislation applied to cases that were pending at the time and put an end to the Court of Cassation’s case-law that had been favourable to employees.   The applicants complained that the enactment of the law and its application to proceedings that were pending had entailed a violation of Article 6 § 1 (right to a fair hearing). In the case of Aubert and Others , the applicants further relied on Article 1 of Protocol No. 1 (protection of property).   In the case of Arnolin and Others , the Court held unanimously that there had been a violation of Article 6 § 1 and awarded the applicants, for all the applications put together, the total sum of EUR 1,508,000 in respect of pecuniary and non-pecuniary damage. In addition, the Court made awards to certain applicants in respect of costs and expenses (details in judgment). In the case of Aubert and Others , the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and found that it did not need to examine the applications under Article 6 § 1. It awarded the applicants, for all the applications put together, the total sum of EUR 961,000 in respect of pecuniary and non-pecuniary damage. In addition, the Court made awards to certain applicants in respect of costs and expenses (details in judgment). (The judgments are available only in French).   Puzinas (No. 2) v. Lithuania (no. 63767/00)   No violation of Article 8 The applicant, Alvydas Puzinas, is a Lithuanian national who was born in 1952 and lives in Panevėžys (Lithuania). He is the President of “Freedom” (“Laisvė”), an organisation for prisoners’ mutual assistance and support.   On 9 July 1999, while he was serving a sentence for aggravated murder in Rasų Prison in Vilnius, he signed a letter on behalf of his organisation and certain other prisoners complaining about the conditions of detention and about various allegedly unlawful acts of the prison administration. The complaint was addressed to 10 people, five of whom were State officials. The five others were representatives of the private media, and sent via an inmate who had been released from the prison, in order to avoid censorship.   The Prison Department Director held that the sending of the complaint through channels other than the prison administration had breached Article 50 § 6 of the Prison Code and punished the applicant by prohibiting him from receiving a parcel during a personal visit. His appeal was ultimately rejected by the Supreme Administrative Court.   The applicant complained that the disciplinary penalty was in breach of his rights under Articles 8 (right to respect for correspondence), 10 (freedom of expression) and 11 (freedom of assembly and association).   The Court considered that the applicant’s complaints had received an adequate judicial review and noted that the penalty imposed on the applicant was of a minor nature. The Court underlined that the applicant’s possible fear of censorship was not a valid excuse for circumventing an apparently legitimate prison rule regarding the channels of complaint. It therefore found that the interference to the applicant’s rights was proportionate and necessary in a democratic society and held unanimously that there had been no breach of Article 8. It further held that it was not necessary to examine the matter separately under Articles 10 and 11. (The judgment is available only in English.)     No violation of Article 6 § 1 (fairness) Gossa v. Poland (no. 47986/99)   Violation of Article 6 § 1 (length) The applicant, Jan Gossa, is a Polish national who was born in 1953 and lives in Łódź (Poland).   He was arrested on 5 April 1994 and Łódź Regional Court convicted him of handling stolen goods on 2 June 1997. The applicant appealed claiming that he had been deprived of any opportunity to challenge the statements of one of the witnesses and that the authorities had made no real attempt to secure the attendance of that witness before the court. The conviction was however upheld. The Supreme Court dismissed his appeal in cassation on 1 December 2000.   The applicant complained that his trial had been unfair in that he had been unable to examine a witness whose statements had served as the main basis for his conviction. He also complained about the length of the proceedings. He relied on Article 6 §§ 1 (right to a fair trial within a reasonable time) and 3 (d) (right to obtain attendance and examination of witnesses).   The Court found, in particular, that the applicant’s conviction was not based solely or to a decisive degree on that particular witness’ statements and that, in the circumstances of the case, the lack of a possibility to examine her at the hearing did not infringe the rights of the defence. It therefore could not find that the applicant’s trial as a whole was unfair.   Accordingly, it held by six votes to one that there had been no violation of Article 6 §§ 1 and 3 (d).   The Court held unanimously that there had been a violation of Article 6 § 1 in respect of the length of the proceedings, which lasted almost six years and eight months.   The applicant was awarded EUR 1,500 for non-pecuniary damage. (The judgment is available only in English.)   N.A. and Others v. Turkey (no. 37451/97)   Just satisfaction The applicants are five Turkish nationals who were born in 1926, 1956, 1954, 1949 and 1950 respectively and who live in Antalya (Turkey).   In 1986 they obtained a tourist-investment certificate from the authorities for the construction of a hotel on a plot of land they had inherited, located on the coast at Karasaz in the village of Çikcilli, in the municipality of Alanya. On an appeal from the Public Treasury, Alanya Court of First Instance annulled the registration of the property in the land register and ordered the demolition of the hotel that was being built, on the ground that the plot of land in question was located on the seashore and could not be privately acquired.   Before the Court, the applicants complained that they had not been compensated for the loss sustained as a result of the demolition of the hotel that was being built and the annulment of the registration of their property in the land register. They relied on Article 1 of Protocol No.   1 (protection of property). In a judgment of 11 October 2005, the Court held that there had been a violation of that Article and considered that the question of just satisfaction was not ready for decision.   In its judgment delivered today, the Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It awarded them EUR 550,000 in respect of pecuniary damage and EUR 5,000 for costs and expenses. (The judgment is available only in French.)     No violation of Article 6 § 1 (fairness) Özkan and Adıbelli v. Turkey (no. 18342/02)   Violation of Article 6 § 1 (length) The applicants, Cahit Özkan and Eylem Zanay Adıbelli, are Turkish nationals who were born in 1976 and 1973 respectively and live in Adana (Turkey).   They were charged with being members of the PKK (Kurdistan Workers’ Party) and were committed to stand trial in Adana State Security Court. Five hearings were held before a bench which included a military judge. Following a change in the law, the military judge was replaced by a civilian judge.   After a further 11 hearings, Adana State Security Court sentenced the applicants to 12 years and six months’ imprisonment on 16 November 2000. Mr Adıbelli’s sentence was reduced to ten years and three months in accordance with the new Criminal Code.   The applicants complained, among other things, of the unfairness and length (about seven years and five months for Mrs Özkan and seven years and three months for Mr Adıbelli) of the proceedings in question. They relied in particular on Article 6 § 1 (right to a fair trial).   The Court held, unanimously, that there had been no violation of Article 6 § 1 as regards the complaint that the State Security Court had lacked independence and impartiality, but that there had been a violation of that Article on account of the excessive length of the proceedings against the applicants. It awarded each of the applicants EUR 3,600 in respect of non-pecuniary damage and EUR 1,500 jointly for costs and expenses. (The judgment is available only in French.)   Intersplav v. Ukraine (no. 803/02)   Violation of Article 1 of Protocol No. 1 The applicant is a Ukrainian-Spanish Joint Venture based in the town of Sverdlovsk in the Lugansk Region, Ukraine.   Since 1998, the applicant has been complaining without success to the Lugansk Regional Tax Administration and the State Tax Administration about the failure of the Sverdlovsk Town Tax Administration to issue certificates for the VAT refunds on time. However, while recognising the existence of the State’s debts to the applicant, the authorities found no fault with the Sverdlovsk Town Tax Administration.   The applicant also instituted more than 140 sets of proceedings in the Lugansk Commercial Court against the Sverdlovsk Town Tax Administration and the State Treasury Department in order to receive compensation for the delayed refund of the VAT.   The applicant maintained that, as of 18 June 2004, the amount of the State debt to the company confirmed by court decisions was UAH 26,363,200 (around EUR 4,119,250).   The applicant complained, in particular, that the State’s practice of groundlessly refusing to confirm the applicant’s entitlement to VAT refunds constituted an interference with the peaceful enjoyment of its property, and caused significant losses to its business. It relied on Article 1 of Protocol No. 1 (protection of property).   The Court considered that interference with the applicant’s possession was disproportionate. It found that the constant delays with VAT refund and compensation in conjunction with the lack of effective remedies to prevent or terminate such an administrative practice, as well as the state of uncertainty as to the time of return of its funds, upset the “fair balance” between the demands of the public interest and the protection of the right to peaceful enjoyment of possessions. In the Court’s view, the applicant bore and continued to bear an individual and excessive burden. It therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1. It awarded the applicant EUR 25,000 for pecuniary damage and EUR 560 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 6 § 1 (length) and (fairness) SCI Les Rullauds and Others v. France (no. 43972/02) The applicants are the company SCI Les Rullauds, a real-estate partnership with its registered office at Saujon (France), and its two partners, Michel David and Jean-Pierre de Pretto, French nationals who were born in 1944 and 1951 and live in Saujon and Saintes (France) respectively.   In 1993 the applicants brought administrative proceedings with a view to settling a dispute between them and the municipality of Pessines concerning the issuance of an Urban-Planning Certificate.   The applicants complained about the unfairness and length (nine years) of the proceedings in question. They relied in particular on Article 6 § 1 (right to a fair hearing).   The Court declared the application admissible in respect of the company but inadmissible in respect of Mr David and Mr de Pretto.   The Court held that there had been a violation of Article 6 § 1 on account of the length of the proceedings and the presence of the Government Commissioner at the deliberations of the Conseil d’Etat . It awarded the applicant company EUR 6,000 in respect of non-pecuniary damage and EUR 2,200 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness) Mihalachi v. Moldova (no. 37551/02)   Violation of Article 1 of Protocol No. 1 The applicant, Nicolae Mihalachi, is a Moldovan national who was born in 1962 and lives in Chişinău.   He complained, in particular, that a final judgment in his favour was quashed by the Supreme Court of Justice. He relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).   The Court held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1. The Court awarded the applicant EUR 3,080 in respect of pecuniary damage and EUR 1,800 in respect of non-pecuniary damage. (The judgment is available only in English.)     Violation of Article 1 of Protocol No. 1 Beler and Others v. Turkey (nos 61739/00, 61740/00, 61757/00, 61753/00 and 61760/00) The nine applicants, all Turkish nationals, complained of delays in the payment of additional compensation for expropriation. They relied on Article 1 of Protocol No. 1 (protection of property).   The Court found unanimously that there had been a violation of Article 1 of Protocol No. 1. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. It awarded them a total of EUR 12,890 in respect of pecuniary damage and EUR 500 jointly for costs and expenses. (The judgment is available only in French.)   Hıdır Kaya v. Turkey (no. 2624/02)   Violation of Article 6 § 1 (fairness) The applicant, Hıdır Kaya, is a Turkish national who was born in 1971 and lives in Istanbul.   He was given a prison sentence by a state security court for being a member of an illegal organisation.   The applicant complained, in particular, that his case had not been heard by an independent and impartial court, because a military judge had sat on the bench of the state security court which tried him. He relied on Article 6 (right to a fair trial).   The Court found that the applicant’s concerns regarding the independence and impartiality of the State Security Court could be regarded as objectively justified. It therefore held unanimously, that there had been a violation of Article 6 § 1. It also held that it was not necessary to examine separately the applicant’s other complaints.   The Court held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage he sustained and awarded him EUR   1,000 for costs and expenses. (The judgment is available only in English.)   Moğul v. Turkey (nos. 40217/02 and 40218/02) Violation of Article 1 of Protocol No. 1 The applicants, Mustafa Moğul and his brother, Ahmet Moğul, are Turkish nationals who were born in 1945 and 1949 respectively and live in İzmir.   The title deeds to their land were annulled on the ground that it was located within a coastline area which could only be used in the public interest.   They complained that they had been deprived of their land without being paid compensation. They relied on Article 1 of Protocol No. 1 (protection of property).   The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage. The applicants were awarded EUR 9,000, each, for pecuniary damage and EUR 2,500, jointly, for costs and expenses. (The judgment is available only in English.)     Friendly settlement Crew v. United Kingdom (no. 61928/00) Gamble v. United Kingdom (no. 68056/01) Rathfelder v. United Kingdom (no. 63507/00) The applicants, Ian Martin Crew, Patrick Gamble and Martin Rathfelder, are United Kingdom nationals. Mr   Crew was born in 1961 and lives in Hyde (United Kingdom), Mr   Gamble was born in 1964 and lives in Leicestershire, and Mr   Rathfelder was born in 1952 and lives in Manchester.   They complained that, because they were men, they were denied social security benefits equivalent to those received by widows. They relied on Articles 8 (right to respect for private and family life), Article 14 (prohibition of discrimination) and Article 1 of Protocol No. 1 (protection of property).   The cases have been struck out following friendly settlements in which 5,817 pounds sterling (GBP) (approximately EUR 8,641) is to be paid to Mr Crew, a total of GBP 7,924.59 (approximately EUR 11,769) is to be paid to Mr Gamble and GBP 23,433.88 (approximately EUR 34,803) is to be paid to Mr Rathfelder. (The cases are 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 Convention of the excessive length of civil or administrative proceedings.   Niva v. Finland (no. 37730/02)   Friendly settlement     Violation of Article 6 § 1 (length) Araguas v. France (no. 28625/02) Sito v. Poland (no. 19607/03) Trojańczyk v. Poland (no. 11219/02) Orel v. Slovakia (no. 67035/01)   ***   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.