CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 15 mai 2008

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } EUROPEAN COURT OF HUMAN RIGHTS   352 15.5.2008   Press release issued by the Registrar   Chamber judgments concerning the Czech Republic, Germany, Norway, Russia and   Ukraine   The European Court of Human Rights has today notified in writing the following 18   Chamber judgments, none of which are final. [1]   Repetitive cases [2] and length-of-proceedings cases, with the Court’s main finding indicated, can be found at the end of the press release.   Violation of Article 6 § 1 (fairness) Faltejsek v. the Czech Republic (application no. 24021/03) The applicant, Jan Faltejsek, is a Czech national who was born in 1958 and lives in Kladruby nad Labem (Czech Republic).   The case concerned an action brought by the applicant for the termination of a contract he had signed to buy property. Relying on Article   6 §   1 (right of access to a court) of the European Convention on Human Rights, the applicant complained that the Constitutional Court had dismissed his appeal on the ground that he had not applied for a declaration of nullity before lodging the appeal.   The European Court of Human Rights found that the Czech Constitutional Court’s particularly strict interpretation of the procedural rule in issue had deprived the applicant of his right of access to a court, and held unanimously that there had been a violation of Article   6 §   1. It considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr   Faltejsek and awarded him 1,100   euros (EUR) for costs and expenses. (The judgment is available only in French.)   Struck out Lück v. Germany (no. 58364/00) The applicant, Edgar Lück, is a German national who was born in 1954 and lives in Bielefeld (Germany). He is the biological father of a girl who was born in 1989.   From 1993 onwards, the child’s mother and her husband, who is the legal father, forbade all contact between the applicant and his daughter. The applicant sought access to the child but his application was dismissed by the family courts on the ground that the law did not provide for such access, since the child was deemed to have been born from the marriage between the mother and her husband. In 1996 the applicant lodged a complaint with the Federal Constitutional Court, which in a judgment of 9   April 2003 quashed all the decisions against the applicant and remitted the case to the civil courts for a full reconsideration of his application. However, the proceedings were stayed pending the entry into force of a new law in April 2004. When they were reopened, the applicant’s daughter, by then aged   15, objected to access.   Relying on Article   8 (right to respect for private and family life) of the Convention, the applicant complained of the family courts’ refusal to grant him access to his daughter. He also complained, under Article   6 §   1 (right to a fair hearing), that the proceedings had been unfair and excessively lengthy. Lastly, he claimed to be the victim of discriminatory treatment, in breach of Article   14 (prohibition of discrimination).   The Court observed that the wording of the Federal Constitutional Court's judgment of 9   April 2003 clearly indicated that that court had acknowledged the violation of Article   8. The Court also noted that the applicant had been unable to apply for access on the basis of the Federal Constitutional Court’s judgment because of the length of the legislative process. Moreover, it considered that the remittal of the case to the family courts for a full reconsideration of his application also encompassed the examination of his other complaints. That being so, it concluded that the applicant could no longer claim to be the victim of a violation of his rights under Article   6 §   1 and Articles   8 and   14, except in respect of his complaint concerning the length of the proceedings.   The Court took note of the unilateral declaration by the Government in which they acknowledged that the length of the civil proceedings in issue had exceeded a reasonable time and offered to pay Mr   Lück EUR   10,800 in compensation for the damage sustained and for costs and expenses. The Court therefore decided to strike the remainder of the application out of its list of cases. (The judgment is available only in French.)   Violation of Article 6 § 2 Orr v. Norway (no. 31283/04) The applicant, Marcus Orr, is a British national who lives in Wilmslow (United Kingdom).   Formerly a British Airways pilot, he was accused in August 2001 of having raped one of his cabin crew following an overnight stay at a hotel in Gardermoen Airport (Oslo). The applicant was ultimately acquitted by the Eidsivating High Court (Norway) in March 2003. In the same judgment the High Court ordered the applicant to pay compensation to the alleged victim. Mr   Orr appealed unsuccessfully to the Supreme Court.   Relying on Article   6 §   2 (presumption of innocence), the applicant complained that, despite his acquittal, he was ordered to pay compensation.     The Court noted that, in its reasoning on compensation, the High Court majority had based its finding on a description of the facts giving details of the nature of the sexual contact, the applicant's awareness of the absence of consent by the alleged victim, the degree of “violence” used by him to accomplish the act and his intent in that respect. In other words, it had covered practically all the elements that would normally amount to the criminal offence of rape under Article   192 of the Penal Code. It was true that, as stated in the Court’s case-law, an acquittal from criminal liability did not bar a national court from finding, on the basis of a less strict burden of proof, civil liability to pay compensation in relation to the same facts. However, the Court considered that, although the concept of “violence” may not have been exclusively criminal in nature, the use made of it by the High Court in the particular context had conferred criminal law features on its reasoning overstepping the bonds of the civil forum. The Court also noted the fact that in two clearly distinct parts of its judgment, the High Court had respectively dealt with the criminal charges against the applicant, ending in a conclusion of acquittal and with the order to pay compensation. In several places in the compensation part the High Court had highlighted that the standard for civil liability to pay compensation had been less strict than that for criminal liability. However, the Court was not convinced that, even if presented together with such cautionary statements, the impugned reasoning had not “set aside” the applicant’s acquittal or “cast doubt on the correctness of the acquittal”. Moreover, those shortcomings had not been rectified on appeal to the Supreme Court. The Court therefore held, by four votes to three, that there had been a violation of Article   6 §   2 and awarded Mr   Orr EUR   10,000 in respect of non-pecuniary damage and EUR   160 for costs and expenses. (The judgment is available only in English.)   Violation of Article 3 (treatment) No violation of Article 5 § 1 Violation of Article 5 § 3 Gusev v. Russia (no. 67542/01) The applicant, Pavel Vladimirovich Gusev, is a Russian national who was born in 1981 and lives in St   Petersburg.   In April 2000 the applicant was taken into custody on charges of theft and placed in a remand centre in St Petersburg, popularly known as “Kresty”. The case against him was discontinued in September 2000 but he remained in custody on the basis of another arrest warrant concerning another theft. He was released in September 2001 and, although ultimately convicted of aggravated theft, was relieved from punishment by the Amnesty Act of 2000.   Relying on Articles   3 (prohibition of inhuman or degrading treatment) and   5 (right to liberty and security), Mr   Gusev complained about the unlawfulness, length and conditions of his detention at the Kresty remand centre. He alleged, in particular, that the cells had been severely overcrowded, that he had not had a separate bed, that there had been no ventilation or privacy during the use of sanitary facilities. He also alleged that he had had to take turns with other inmates to rest and that, for several months he had slept on the floor under the bed.   The Court noted, in particular, that the Russian Government acknowledged that the remand centre had been overcrowded but claimed to be unable to indicate the exact number of inmates owing to a lack of documents. It further noted that statements by detainees held in the same remand centre corroborated the applicant’s allegations. The Court reiterated that it was the Russian Government’s responsibility to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties. It therefore found it established that the cells had been overcrowded and that the applicant had not had his own place to sleep. The fact that the applicant had been obliged to live, sleep and use the toilet in the same cell with many other inmates had been in itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The Court therefore held unanimously that there had been a violation of Article   3.   The Court also found that by failing to address concrete relevant facts and by relying mainly on the gravity of the charges, the Russian authorities had extended the applicant’s detention on grounds which could not be regarded as “sufficient”. It therefore held unanimously that there had been a violation of Article   5 §   3.   However, it found that the entire period of the applicant’s detention had had a valid lawful basis and held unanimously that there had been no violation of Article   5 §   1.     Mr   Gusev was awarded EUR   5,000 in respect of non-pecuniary damage and EUR   1,000 for costs and expenses. (The judgment is available only in English.)   Violation of Article 6 § 1 (fairness) Ponomarev. v. Russia (no. 7672/03) The applicant, Vladimir Vladimirovich Ponomarev, is a Russian national who was born in 1975 and lives in Vorkuta (Russia).   In October 1996 the applicant was arrested on suspicion of theft. He was released in December 1997 and, although convicted as charged in December 2000, the sentence against him was lifted under the 2000 Amnesty Act. He subsequently brought civil proceedings against the Russian Ministry of Finance in which he sought to recover lost wages and be compensated for unlawful detention and for having contracted tuberculosis while in pre-trial detention.   The case concerned the applicant’s complaint that, in those compensation proceedings, the Russian courts had failed to examine his claim concerning his infection with tuberculosis. He relied in particular on Article   6 §   1 (right of access to a court).   The Court noted that the evidence in the case file had clearly indicated that the applicant’s claims concerning his alleged infection with tuberculosis had not been examined. Furthermore, that failure had been acknowledged by the Russian Government. The Court therefore considered that Mr   Ponomarev had been denied access to a court and held unanimously that there had been a violation of Article   6 §   1. It awarded him EUR   2,000 for non-pecuniary damage. (The judgment is available only in English.)   Violation of Article 5 § 3 Popkov v. Russia (no. 32327/06) The applicant, Roman Andreyevich Popkov, is a Russian national who was born in 1978.   He is currently in custody following his arrest in May 2006 on charges of participating in mass disorder, involving the use of gas guns, and assault and battery. The criminal proceedings against the applicant are still pending.   The case concerned the applicant’s complaint about the excessive length of his pre-trial detention. He relied in particular on Article   5 §   3 (right to liberty and security).   The Court held unanimously that there had been a violation of Article   5 §   3 on account of the applicant’s detention having lasted almost two years and awarded him EUR   5,000 for non-pecuniary damage. (The judgment is available only in English.) Violation of Article 6 § 1 (fairness) Nadtochiy v. Ukraine (no. 7460/03) The applicant, Anatoliy Mykolayovych Nadtochiy, is a Ukrainian national who was born in 1977 and lives in Chernigiv (Ukraine).   In February 2000 he brought a car registered in Lithuania over the border into Ukraine, with the obligation to re-export the car before February 2001. In August 2002, in his absence, he was found guilty by the Ukrainian courts of infringing relevant customs regulations because he had failed to re-export the car. As he was serving an eight-year prison sentence for murder, he was informed of that decision by the prison administration. The applicant was ultimately released on probation in December 2006.   Relying on Article   6 §   1 (right to a fair trial), Article   13 (right to an effective remedy) and Article   1 of Protocol No.   1 (protection of property), Mr   Nadtochiy complained that the administrative proceedings concerning his failure to re-export the car were considered in his absence and without any confirmation that he had indeed been notified of the hearing to examine his case.   The Court noted, in particular, that the applicant had not been able to take part in the administrative proceedings against him, even though the Ukrainian authorities had been aware of his particular situation and the place of his detention. Moreover, there were no documents to support the claim that the applicant had been notified about the court proceedings. The Court therefore held unanimously that there had been a violation of Article   6 §   1 on account of the unfairness of the proceedings against the applicant. It further held unanimously that there was no need to examine separately the complaints under Article   13 and Article   1 of Protocol No.   1 and that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage. (The judgment is available only in English.)     Repetitive cases   The following cases raise issues which have already been submitted to the Court.   The Court found the following violations in these eight cases concerning the failure to enforce final judgments in the applicants’ favour in good time or not at all. In the cases of Omelchack and Pshychenko the Court held that it was not necessary to examine the complaints under Article   13 (right to an effective remedy). Violation of Article 6 § 1 (fairness) Violation of Article 1 of Protocol No. 1 Chechin v. Ukraine (no. 6323/03) Khokhlov v. Ukraine (no. 26862/03) Kislinskiy v. Ukraine (no. 37039/03) Omelchack v. Ukraine (no. 5616/04) Petrova and Chornobryvets v. Ukraine (nos. 6360/04 and 16820/04)   Violation of Article 6 § 1 (fairness) Violation of Article 13 Belochenko v. Ukraine (no. 41803/04)   Violation of Article 6 § 1 (fairness) Lukyanchenko v. Ukraine (no. 17327/02)   Violation of Article 1 of Protocol No. 1 Pshychenko v. Ukraine (no. 29433/04)     Length-of-proceedings cases   In the following cases, the applicants complained in particular about the excessive length of (non-criminal) proceedings.   Violation of Article 6 § 1 (length) Kirichenko and Belinskiy v. Ukraine (no. 36283/02) Mikhaylenko v. Ukraine (no. 18389/03)   Violation of Article 6 § 1 (length) Violation of Article 13 Nataliya Shevchenko v. Ukraine (no. 68762/01)     ***   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) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   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.