CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 18 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.   Kaplan v. Austria (application no. 45983/99)   Violation of Article 8 The applicants, Fadime Kaplan and Mehmet Kaplan, are Turkish nationals. Mrs Kaplan was born in 1968 and lived at the time of the events with her family in Absdorf (Austria).   Following difficulties in the relationship with her husband, Mrs Kaplan left the matrimonial home at the end of May 1991. In July and August 1991 she requested custody of the couple’s son F. No decision was made concerning her requests until June 1997 when the District Court stated that it did not have jurisdiction as F. had meanwhile moved to Turkey. The proceedings were therefore pending for more than five years and five months.   The applicant complained that the district court’s inactivity enabled her former husband to remove F. to Turkey. She relied, in particular, on Article 8 (right to respect for private and family life).   The Court could not find that the domestic courts complied with their duty under Article 8 to deal diligently with the applicant’s request to grant her custody of her son and therefore held unanimously that there had been a violation of Article 8 of the European Convention on Human Rights and that it was unnecessary to examine the remainder of the applicant’s complaints. The Court awarded Mrs Kaplan 8,000   euros (EUR) in respect of non-pecuniary damage and EUR 4,601.13 for costs and expenses.   (The judgment is available only in English.)     Stanimir Yordanov v. Bulgaria (no. 50479/99)   Violation of Article 6 §§ 1 and 3 (c) The applicant, Stanimir Asenov Yordanov, is a Bulgarian national who was born in 1932 and lives in Sofia.   In December 1995 the applicant was ordered to pay a fine of 633,025 old Bulgarian levs for a customs offence, having attempted, by means of a false declaration, to export chemical products whose export was subject to authorisation. He appealed against the decision before Sofia District Court and gave as his address, for the purposes of the proceedings, the offices of his lawyer.   The applicant and his lawyer did not attend the hearing at which his appeal was examined, as the summons to attend the hearing had been sent to the applicant’s former address, despite his lawyer having requested on several occasions that it be sent to her offices. The impugned decision was upheld on appeal.   The applicant lodged an application for a retrial. The application was granted by Sofia City Court, which acknowledged that the applicant had not been summoned in the proper manner. The court examined his appeal on the merits without summoning him or his lawyer to appear and upheld the decision imposing a penalty on the applicant.   Relying on Article 6 (right to a fair hearing), the applicant complained that he had been unable to appear and defend his case, either in person or through his lawyer, before the courts which had ruled on the case.   The Court held unanimously that there had been a violation of Article 6 §§ 1 and 3 (c) and awarded the applicant EUR 1,000 for non-pecuniary damage and EUR 299 for costs and expenses. (The judgment is available only in French.)   Zavřel v. Czech Republic (no. 14044/05)   Violation of Article 8 The applicant, Vladimír Zavřel, is a Czech national who was born in 1945 and lives in Brno (Czech Republic).   In July 2001 J.Z., the applicant’s wife, left the family home, taking with her the couple’s son, born in 1995. The couple reached an agreement concerning, among other things, the exercise of the applicant’s visiting rights. The agreement was approved by Brno Municipal Court on 11   December 2002 and its judgment became final. However, the child’s mother began to prevent the applicant from exercising his visiting rights.   After withdrawing his first application for enforcement, supposedly in order to avoid further ill-feeling, the applicant lodged a fresh application in October 2003 to have his visiting rights enforced, and requested the court to specify the arrangements governing the exercise of his rights. However, with the exception of one meeting at the offices of the expert at the beginning of 2004, the applicant has not seen his son since November 2003.   The applicant alleged, in particular, that his applications to have his visiting rights enforced had not been examined fairly and within a reasonable time and that his right to respect for his family life had been violated on account of the failure to enforce the judgment of 11   December 2002. He relied in particular on Article 8 (right to respect for private and family life).   The Court noted that the applicant’s parenting skills had been described as good, whereas the experts had observed on several occasions that J.Z. had a negative influence on the child and sought to turn him against the applicant. It was therefore abundantly clear that the passing of time had had adverse consequences for the applicant. In addition, the courts had considered it to be in the child’s interests to meet his father. However, despite being kept regularly informed of the situation by the applicant and the psychologists concerned, the only action taken by the courts had been to issue two formal notices to the child’s mother and to refer the parents to an advisory centre.   The Court took the view that the applicant’s inability to exercise his visiting rights had been attributable above all to the toleration by the courts of the mother’s consistent refusal to cooperate and to the absence of measures aimed at establishing effective contact. In the circumstances the Court held unanimously that there had been a violation of Article 8 and awarded the applicant EUR 6,000 in respect of non-pecuniary damage. (The judgment is available only in French.)     Violation of Article 6 § 1 (length) Vasilev v. Greece (no. 2736/05)   Violation of Article 13 The applicant, Alexander Vasilev, is a Bulgarian national who was born in 1973. He is currently serving a prison sentence in Thessaloniki Prison (Greece).   On 11 February 2004 the applicant was sentenced to life imprisonment for possessing drugs and drug trafficking. The proceedings are currently pending before Thessaloniki Court of Appeal.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy), the applicant complained of the length of the criminal proceedings against him (three years and 11 months to date) and of the fact that there was no court in Greece to which he could apply to complain of the excessive length of the proceedings.   The Court held unanimously that there had been a violation of Articles 6 § 1 and 13 and awarded the applicant EUR 3,500 for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in French.)     Violation of Article 5 § 3   Violation of Article 6 § 1 (length) Estrikh v. Latvia (no. 73819/01)   Violation of Article 8 The applicant, Vladimir Estrikh, is a Russian national who was born in 1972 and lives in Krasnoyarsk (Russia). He arrived in the Republic of Latvia as a member of the ex-USSR armed forces located in the territory of Latvia. At the beginning of 1990 he and Ms B., a Latvian citizen, started living together and, in 1993, they had a child together.   After military forces were withdrawn from Latvia, the applicant lived there on the basis of a temporary residence permit, and, upon expiry of the residence permit, he left Latvia. Between 1994 and 1997 he visited Latvia three times with a visa. The validity of the last visa having expired on 17   November 1997, the applicant continued to live in Latvia illegally.   On 19   February 1998 the applicant was apprehended by the police and taken into custody on suspicion of having committed robbery. Criminal proceedings were brought against him. He spent the whole period of his detention from 19 February 1998 to 19 August 2002 in a remand prison, where long-term family visits were prohibited.   The Latvian courts found the applicant guilty of robbery and sentenced him to four years and six months’ imprisonment.   The Citizenship and Migration Authority (“CMA”) decided, in accordance with Article   24   2 of the Criminal Code, that, on his release from prison, the applicant would be expelled from Latvia. The applicant appealed. While his appeal was still pending, on 29 August 2002, he was deported to the Russian Federation.   The applicant complained that his detention on remand was excessively long and partly unlawful, that the proceedings against him were unreasonably long, that, during his pre-trial detention, his right to family life was infringed and, that his expulsion from Latvia was unlawful. He relied on Article 5 § 3 (right to liberty and security), Article 6 § 1 (right to a fair trial within a reasonable time) and Article 8 (right to respect for private and family life and correspondence).   The Court reiterated that it had already found violations of Article 5 § 3 in several cases brought against Latvia on the grounds of insufficient motivation and inadequate proceedings to decide on continued detention. The Court considered that those cases, as well as the fact that there were dozens of similar applications pending before the Court, seemed to disclose a systemic problem in relation to the apparently indiscriminate application of detention as a preventive measure in Latvia. Accordingly, the Court held unanimously that there had been a violation of Article 5 § 3,   Finding that the length of proceedings, four years, nine months and three days, was excessive and that it did not satisfy the “reasonable time” requirement, the Court held, unanimously, that there had been a violation of Article 6 § 1.   The Court noted that, when the applicant was arrested in 1998, he had been living in a partnership for more than five years. Therefore, it followed that the ban on long-term family visits was in breach of Article 8. Also the applicant’s expulsion from Latvia while his appeal against the decision of the CMA was still pending was not “in accordance with the law”. The Court therefore held unanimously, that there had been a violation of Article 8.   The Court declared inadmissible the applicant’s complaint under Article 8 that he was not permitted to exchange correspondence with his relatives.   The Court awarded the applicant EUR 5,000 in respect of non-pecuniary damage. (The judgment is available only in English.)   Violation of Article 6 § 1 (fairness) Alliance Capital (Luxembourg) SA v. Luxembourg (no. 24720/03) The applicant company, Alliance Capital (Luxembourg) SA, is a company from Luxembourg which has its headquarters in the city of Luxembourg.   Proceedings were brought against the company by the German company Allianz Kapitalanlage GmbH and the American company Alliance Capital Management L.P., seeking to prohibit it from using its business name. The first-instance and appeal courts ordered the applicant to change its business name.   Following an appeal by the applicant on points of law, the reasoning of the Court of Cassation suggested that the impugned judgment had been overturned in its entirety. However, it omitted to mention the company Allianz Asset Management in the operative provisions, with the result that the judgment was overturned only in respect of Allianz Kapitalanlagegesellschaft. Consequently, the Court of Appeal, to which the case was remitted, decided that it did not have jurisdiction to examine the applicant’s appeal concerning the company Allianz Asset Management, and found in favour of the applicant with regard to Allianz Kapitalanlagegesellschaft.   On 6 March 2003 the Court of Cassation dismissed a further appeal by the applicant on the grounds that the Court of Appeal had simply stated the limits of its jurisdiction and had not been required to rectify a material error which might have affected the first Court of Cassation judgment.     Relying, in particular, on Article 6 § 1 (access to a court), the applicant company complained that the proceedings had been unfair and that it had not had an effective remedy before the domestic authorities enabling it to assert its right to use its business name.   The Court noted that, as a result of an omission in the Court of Cassation judgment, which had subsequently been endorsed, the applicant company had been presented with two diametrically opposed sets of findings in a dispute concerning applications which were related, not to say identical. While the judgment given after the case had been remitted had found in favour of the applicant with regard to the company Allianz Kapitalanlagegesellschaft, the opposite finding, made in respect of Allianz Asset Management by the Court of Appeal’s first judgment, continued to apply. Hence, the applicant company had been penalised for an error for which it could not be held responsible and against which it had no effective means of redress. In the circumstances, the applicant had therefore been subjected to excessive interference with his right of access to a court and, accordingly, with his right to a fair hearing, and the Court held unanimously that there had been a violation of Article 6 § 1. It awarded the applicant company EUR 12,000 for costs and expenses. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness) Bulgakova v. Russia (no. 69524/01)   Violation of Article 1 of Protocol No. 1 The applicant, Mayya Filippovna Bulgakova, is a Russian national who was born in 1933 and lives in Novosibirsk (Russia).   The applicant complained that a judgment in her favour was reviewed because of new legislation passed after the judgment had become final and binding.   She 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, and that the question of the application of Article 41 was not ready for decision. (The judgment is available only in English.)   Šubinski v. Slovenia (no. 19611/04)   Violation of Article 6 § 1 (length)   Violation of Article 13 The applicant, Goran Šubinski, is a Slovenian national who was born in 1971 and lives in Mirna (Slovenia).   The application concerns two sets of criminal proceedings whereby the applicant was indicted for sexual abuse of a minor and presenting and producing pornographic material concerning minors. The applicant was found guilty in both sets of the proceedings and sentenced to 14 years’ imprisonment.   In both sets of proceedings, the applicant lodged a request for the protection of legality and lodged a constitutional appeal. The latter are still pending.   Relying notably on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article   13 (right to an effective remedy), the applicant complained about the length of both sets of criminal proceedings against him.   The Court held unanimously that there had been a violation of Article 6 § 1 as regards the length of the first set of proceedings (more than eight years and three months for four levels of jurisdiction). The Court accepted the applicant’s argument, for the purposes of Article   6, that he was “charged” on the day the public prosecutor lodged his request for a criminal investigation, finding that the applicant’s situation must have been substantially affected in the preliminary proceedings by the measures taken by the police and the social stigma attached to the alleged criminal offence. Furthermore, it considered that there had been a violation of Article 13 on account of the lack of a remedy under domestic law by which the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time.   Given the applicant’s abusive use of procedural rights and delaying tactics and the fact that the authorities did display the required diligence in dealing with the applicant’s case (three years and seven months for three instances), the Court declared the complaints concerning the second set of proceedings inadmissible.   Repetitive cases   In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention:   Klimenko v. Russia (no. 11785/02)   Violation of Article 6 § 1 (fairness)     Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Kot v. Russia (no. 20887/03) Sitkov v. Russia (no. 55531/00) The three applicants are Russian nationals.   They complained of the quashing of judgments in their favour by way of supervisory review. They 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 in all three cases and a violation of Article 1 of Protocol No. 1 in the cases of Kot and Sitkov , and that in the case of Klimenko there was no need to examine the complaint under Article 1 of Protocol No.   1 or the remainder of the complaint. The Court awarded the applicants the amounts, in euros, as shown in the table below. (The judgments are available only in English.)     Pecuniary damage Non-Pecuniary damage Costs and expenses Klimenko     500 500   Kot 22,000 2,000        940 Sitkov   5,131 1,500         Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Kulikov v. Ukraine (no. 36367/04) Kurkunov v. Ukraine (no. 5079/04) Lapinskaya v. Ukraine (no. 10722/03) Silka v. Ukraine (no. 3624/03) The four applicants are Ukrainian nationals.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), the applicants complained about the lengthy failure of the State authorities to enforce judgments given in their favour.   The Court held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 in all four cases.   The Court held unanimously that in the cases of Kulikov , Lapinskaya and Silka the State should pay the applicants the judgment debts still owed to them. In respect of non-pecuniary damage, the Court awarded EUR   1,400 to Mrs Lapinskaya and EUR 1,600 to Ms Silka. Mr   Kulikov failed to submit any claims for damage and costs and expenses, and Mr   Khurkunov submitted his claim for just satisfaction out of time. In those circumstances, the Court made no award. (The judgments 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 excessive length of civil or administrative proceedings. The applicants in Ouzounian Barret v. Cyprus also complained under Article 13 that they had no effective remedy concerning their length-of-proceedings complaints.     Violation of Article 6 § 1 (length) A.J. Hadjihanna Bros (Tourist Enterprises) Ltd & Hadjihannas v. Cyprus (no. 34579/05) Shchiglitsov v. Estonia (no. 35062/03) Oberwalder v. Slovenia (no. 75567/01) Sedmak v. Slovenia (no. 77522/01)     Violation of Article 6 § 1 Ouzounian Barret v. Cyprus (no. 2418/05)   Violation of Article 13     Kezić v. Slovenia (no. 76395/01)   No violation of Article 6 § 1 (length)     The Court held unanimously that there had been a violation of Article 6 § 1 in all the cases except Kezić v. Slovenia . The Court also held unanimously that there had been a violation of Article 13 in the case of Ouzounian Barret v. Cyprus . (The judgments are available only in English, except the Kezić v. Slovenia and Sedmak v. Slovenia judgments which are available in French.)   ***   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.