CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 4 octobre 2007

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France (application no. 16290/04) The applicant, Bruno Corcuff, is a French national who was born in 1965. He is currently in prison in Rennes (France).   In January 2003 the Ille-et-Vilaine Assize Court convicted the applicant for several rapes committed between 1995 and 1998, and sentenced him to 16 years’ imprisonment.   Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, he complained that the criminal proceedings against him were unfair. His main grievance concerned the presence of the principal public prosecutor in the proceedings against him at the information meeting for jurors the day before the trial began in the Assize Court of Appeal.   The European Court of Human Rights considered that the information meeting, essentially of a practical nature, had been held to inform jurors about the organisation of the proceedings. It observed that the President of the Assize Court had ensured the neutrality of the meeting and that no directions had been given to the jurors by judges or prosecutors. The Court further noted that, with the presence of both a member of the prosecution and a member of the Bar, a fair balance had been struck in terms of the information given to the jurors. Accordingly, the Court held, unanimously, that there had been no violation of Article 6 § 1. (The judgment is available only in French.)   Violation of Article 6 § 1 (fairness) Le Stum v. France (no. 17997/02) The applicant, Bertrand Le Stum, is a French national who lives in Chambourcy (France).   He set up a limited company called After Nettoyage, 98.4% of whose share capital was held by the company After Service, which was wound up in November 1992. In January 1994 the Versailles Commercial Court opened judicial administration proceedings against After Nettoyage and in February 1994 placed the company in judicial liquidation. In a judgment of 30 January 1997 the court ordered the applicant to pay 450,000   francs (about 69,000   euros   (EUR)), observing in particular that the company’s liabilities considerably exceeded its assets and that it had never been a going concern. The president of the bench was also the reporting insolvency judge, whose report was before it, and he had in fact held that position in both the administration and liquidation proceedings concerning the applicant’s company.   Relying on Article 6 (right to a fair hearing), the applicant complained of a violation of his right to have his case heard by an impartial tribunal, in respect of the proceedings against the company After Nettoyage.   The Court noted that the same person had held the position of insolvency judge throughout the judicial administration and liquidation proceedings, before presiding over the court which ruled on the mismanagement imputed to the applicant. The insolvency judge had therefore been in a position to reach his own opinion about the accusation of mismanagement by the applicant in his capacity as managing director of the company concerned, even though the judge had not addressed that question. Accordingly, the Court found that there had been a violation of Article   6 § 1. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. (The judgment is available only in French.)   Violation of Article 8 Sanchez Cardenas v. Norway (no. 12148/03) The applicant, Jose Santo Sanchez Cardenas, is a Chilean national who was born in 1968 and lives in Bergen (Norway). He has two sons, L. and A., born in 1994 and 1996, respectively.   In 1995 the applicant separated from the children’s mother, H.T., a Norwegian national. In June 1997 a dispute arose concerning access to his children following allegations made by H.T. to the police which accused the applicant of having sexually abused L.. The investigation into those allegations was discontinued in 1998.   In 2000 the applicant brought proceedings in which he claimed access rights to his two sons and, in April 2001, he was granted the right to see them every other weekend and for part of the holiday periods. In that decision, the accusations of sexual abuse were rejected. It was found that the mother had fabricated the allegations as part of a strategy to obstruct the applicant’s access rights.   In September 2002, however, Gulating High Court decided not to grant access rights to the applicant and quashed the April 2001 judgment. The High Court considered two grounds submitted by H.T. for refusing access: firstly, the allegations of sexual abuse and, secondly, L.’s strong objection to and anxiety about access. He had said that he would kill himself rather than see his father.   Referring to the first point, the High Court described H.T.’s complaint and the subsequent criminal proceedings. It then went on to state that it was not decisive whether there was insufficient evidence for criminal conviction and recalled that no risk could be taken in the case of access to minors. To that, the High Court added: “In view of the information available in the case, and the fact that quite detailed descriptions have been provided of the abuse, together with L.’s strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred. The High Court has nevertheless not found it necessary to go into or take a stance on this.” As regards the second point, the High Court considered in detail the advantages and disadvantages of three different options reviewed by a court-appointed expert, namely: ordinary access; limited access under supervision; and, terminating access altogether. It found that the first option, unlikely to succeed, would cause a strain and burden on L. and his mother and would jeopardise his development; the second option would also be stressful for L., would require considerable human and financial resources and risked failure. It concluded that the third option was most favourable to the children’s development and was, on balance, justified by their best interest.   Relying on Article 6 § 1 (right to a fair hearing) and Article 8 (right to respect for private and family life), Mr Sanchez Cardenas alleged that the above-mentioned passage from the High Court’s judgment amounted to an affirmation of suspicion that he had abused his son. He further claimed that, having been labelled a sexual abuser, he was suffering from anxiety and depression, as corroborated by medical reports.   The Court noted that it was not in dispute that the interference with the applicant’s private and family life was “in accordance with law”. It was also prepared to accept that that interference was to pursue the legitimate aim of protecting the rights and freedoms of others. However, it was not apparent why the High Court mentioned that abuse might have occurred, thus confirming a suspicion of its own that the applicant had committed a serious crime, but decided not to go any further into the matter. In the Court’s opinion, that court should either have dealt with the issue of sexual abuse fully (i.e. by examining evidence and coming to a reasoned conclusion) or left it to one side. Such an authoritative judicial decision concerning his conduct had stigmatised him, had had a major impact on his honour and reputation and prejudiced his private and family life. The Court therefore found that the relevant passage from the High Court judgment had not been sufficiently justified in the circumstances and had been disproportionate to the aims pursued. Accordingly, the Court held unanimously that there had been a violation of Article 8. In view of those findings, it did not find it necessary to carry out a separate examination of Article 6 § 1. Mr   Sanchez Cardenas was awarded EUR   7,000 for non-pecuniary damage and EUR   9,200 for costs and expenses. (The judgment is available only in English.)   Violation of Article 6 (fairness) Anghel v. Romania (no. 28183/03) The applicants, Petre and Maria Anghel, a married couple, are Romanian nationals who were born in 1936 and 1939 respectively and live in Pucioasa (Romania).   On 21 November 2002 Petre Anghel went to the archives of Pucioasa Court of First Instance to obtain a copy of a decision of that court in one of the sets of proceedings initiated by him. His visit led to an incident about which the applicant and the archivist have given conflicting accounts. On 24 November 2002 Petre Anghel was served at his home address with an order dated 21 November 2002 for the payment of a fine of two million lei   (ROL) (about EUR   59 at the time) for having insulted the archivist in a public place using vulgar language that constituted an attack on his honour and dignity. The applicant disputed the fine, considering it unlawful as he denied having committed the offence of which he was accused, but his appeal was unsuccessful.   Relying on Article 6 (right to a fair trial), Petre Anghel complained of the unfairness of the proceedings concerning his appeal against the fine. The two applicants further complained about the outcome of two other sets of proceedings that they had brought in the Romanian courts, seeking the annulment of a contract of sale and of various administrative acts, but the Court declared those complaints inadmissible.   The Court observed in particular that Petre Anghel had been “charged” since, at the latest, 24   November 2002, when he had been served at his home address with the order to pay a fine of 21   November 2002. It further took note of uncertainties surrounding the testimonies taken into account by the Romanian courts and considered that the proceedings had breached the applicant’s right to the presumption of innocence. Accordingly, the Court held unanimously that there had been a violation of Article 6 and awarded Petre Anghel EUR   1,200 in respect of non-pecuniary damage. (The judgment is available only in French.)   Two violations of Article 6 § 1 (fairness) Violation of Article 6 § 1 (length) Forum Maritime S.A. v. Romania (nos. 63610/00 and 38692/05) The applicants are Forum Maritime S.A., a commercial company registered under Panamanian law and based in Panama and Piraeus (Greece), and, in the case of application no. 63610/00 only, Stelios Katounis, a Greek national. Mr Katounis, who died on 4 January 2002, was chairman and chief executive, and a shareholder, of the applicant company.   Relying in particular on Article 6 (right to a fair hearing), Forum Maritime S.A. alleged that the civil, criminal and commercial proceedings brought by it in order to obtain the repayment by a bank of 25 million United States dollars (approximately EUR 18 million) had entailed a breach of its right to the peaceful enjoyment of its possessions, its right to a fair hearing within a reasonable time and its right of access to a court.   Under Rule 42 § 1 of the Rules of Court, the Court decided to join applications nos.   63610/00 and 38692/05 having regard to their common factual and legal particulars.   The Court declared inadmissible the complaints concerning the civil proceedings and the fairness of the commercial proceedings. As regards the fairness of the criminal proceedings, which the applicant had applied to join as a civil party, the Court reiterated its previous findings concerning judicial decisions taken by Romanian prosecutors as members of the procurator general’s department without the requisite independence from the executive. It considered that the applicant company’s criminal complaint with a civil-party application had not been examined by an independent and impartial tribunal. The Court further found that the applicant company’s access to the material in the prosecution file had been unreasonably restricted. It accordingly held that there had been two violations of Article   6 § 1 as regards the fairness of those proceedings. As to the commercial proceedings, the Court observed in particular that examination of the merits of the case had begun belatedly, more than six years after the initial application. It considered that the length of those proceedings had thus been excessive and had failed to meet the “reasonable time” requirement. It accordingly found that there had been a further violation of Article 6 § 1 in that connection. The Court awarded the applicant company EUR   3,500 in respect of non-pecuniary damage and EUR   8,000 for costs and expenses (The judgment is available only in French.)   Violation of Article 5 § 3 Violation of Article 8 Nastase-Silivestru v. Romania (no. 74785/01) The applicant, Georgeta Năstase-Silivestru, is a Romanian national who was born in 1953 and lives in Eforie Sud (Romania).   Further to decisions of 22 and 24 November 2000 by a public prosecutor at the Supreme Court of Justice, the applicant was, respectively, taken into police custody for 24 hours and, after having been released, placed in pre-trial detention for 30 days, on suspicion of fraud and making use of forged documents with intent to defraud. It appears that the criminal proceedings against the applicant are still pending.   Relying on Article 5 § 3 (right to liberty and security), the applicant complained that following her arrest, which had been ordered by a public prosecutor, she had not been brought “promptly” before a judge or other officer authorised to exercise judicial power. Under Article 8 (right to respect for private and family life), she further alleged that her right to respect for her correspondence with her family had been breached during her detention.   As regards the prosecutor’s decision of 24 November 2000, the Court observed that it was not until 12 December that the lawfulness and merits of the detention had been examined by the judiciary. It pointed out that the judicial scrutiny required under Article 5 § 3 had to be afforded within a maximum period of four days following the arrest, save in exceptional circumstances. In the present case, it could find no reason to justify the detention of the applicant for 18 days without bringing her before a judge or other law officer. Accordingly, the Court held unanimously that there had been a violation of Article 5 § 3. The Court further observed that it was not in dispute between the parties that three letters sent to the applicant by her family had been retained by the authorities for a certain time. It found that there had been interference with the applicant’s right to respect for her correspondence and held unanimously that there had been a violation of Article 8, on the ground that the impugned interference had not been in accordance with a “law” within the meaning of paragraph 2 of that Article. The Court awarded Mrs Năstase-Silivestru EUR   3,000 in respect of non-pecuniary damage. (The judgment is available only in French.)     Violation of Article 6 § 1 (fairness)   Violation of Article 1 of Protocol No. 1 Piaţa Bazar Dorobanţi s.r.l. v. Romania (no. 37513/03) The applicant company, Piaţa Bazar Dorobanţi s.r.l., is a commercial private limited company set up in 1991, with its head office in Bucharest.   In April 2001 proceedings were brought against the applicant company to have it evicted from the Piaţa Dorobanţi fruit and vegetable market. It appealed against those proceedings and, in a last-instance judgment of 30 September 2002, the Commercial Division of the Bucharest Court of Appeal found in particular that the company was entitled to restitution of ROL 9,167,560,000 (about EUR 270,000), and to be granted custody of constructions and facilities in the Piaţa Dorobanţi market until the sum was paid. However, the Supreme Court of Justice ultimately quashed that judgment in 2003.   Relying on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property), the applicant company complained about the quashing of the final judgment of 30   September 2002 and the resulting breach of its rights to a fair hearing and to the peaceful enjoyment of its possessions.   The Court considered that the quashing of the final judgment had infringed the principle of legal certainty and held, unanimously, that there had been a violation of Article 6 § 1. It further found that the applicant company had had to bear an individual and excessive burden as it had been deprived, for no material or compelling reason, of the sum owed to it as recognised by that judgment. The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1. It awarded the applicant company EUR   437,935 in respect of pecuniary damage, EUR   3,000 in respect of non-pecuniary damage and EUR   5,600 for costs and expenses. (The judgment is available only in French.)     Repetitive cases   The following cases raised issues under the Convention which had previously been submitted to the Court.   Violation of Article 6 § 1 (fairness) Djaoui v. France (no. 5107/04) In this case the applicant complained of a lack of fairness in the criminal proceedings against him for, among other things, concealment of assets and tax evasion. The Court found that there had been a violation of Article 6 § 1.   Violation of Article 6 § 1 (fairness) Violation of Article 1 of Protocol No. 1 Galkin v. Russia (no. 33459/04) The Court found the above violations in this case concerning a national judicial decision in the applicant’s favour which had not been enforced in good time.     Length-of-proceedings cases   In the following cases, the applicants complained in particular about the excessive length of (non-criminal) proceedings. The applicant in the case of Tratar v. Slovenia also complained that he had no effective remedy concerning his length-of-proceedings complaint.   Violation of Article 6 § 1 (length) Vallar v. France (no. 27314/02)   Violation of Article 6 § 1 (length) Violation of Article 13 Tratar v. Slovenia (no. 76141/01)     ***   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) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   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 Convention.