CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 13 novembre 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 } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   803 13.11.2008   Press release issued by the Registrar   Chamber judgments concerning Bulgaria, the Czech Republic, Finland, Germany, Italy, Moldova, Poland, Portugal, Romania, Slovakia, Turkey and   Ukraine   The European Court of Human Rights has today notified in writing the following 34 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 5 §§ 3, 4 and 5 Violation of Article 8 Bochev v. Bulgaria (application no. 73481/01) The applicant, Konstantin Bochev Bochev, is a Bulgarian national who was born in 1964 and is currently serving a 30-year sentence in Sofia Prison for, in particular, murdering a police officer.   The case concerned Mr Bochev’s complaint about the unlawfulness and excessive length of his pre-trial detention, the judicial review of that detention and the lack of an enforceable right to compensation. He relied on Article   5   §§   3, 4 and   5 (right to liberty and security) of the European Convention on Human Rights. He also complained about the excessive length of the criminal proceedings against him, in breach of Article   6 §   1 (right to a fair trial within a reasonable time), and the monitoring of his correspondence by the prison administration, in breach of Article   8 (right to respect for correspondence).   The European Court of Human Rights held unanimously that there had been a violation of Article   5   §   3 of the Convention on account of the domestic courts not having properly justified detaining the applicant for more than seven years and five months. The Court also held unanimously that there had been a violation of Article   5   §   4 concerning: the judicial review of all aspects of the lawfulness of his detention; the fact that the proceedings were not truly adversarial as the applicant had not had the opportunity to reply to the public prosecutor’s comments; and, the domestic courts’ failure to rule on certain requests for release. The Court further held unanimously that there had been a violation of Article   5   §   5 on account of the lack of an enforceable right to compensation for those breaches of Article   5   §§   3 and   4. Lastly, the Court noted in particular that the Government had failed to explain what had been the legitimate aim of systematically intercepting all of pre-trial detainees’ non-legal correspondence in the period up to April 1999. The Court therefore held unanimously that there had been a violation of Article   8. The Court awarded Mr   Bochev 6,000   euros   (EUR) in respect of non-pecuniary damage and EUR   1,500 for costs and expenses. (The judgment is available only in English.)   Violation of Article 5 §§ 3 and 4 Fešar v. the Czech Republic (no. 76576/01) The applicant, Jaromír Fešar, is a Czech national who was born in 1965 and lives in Bayreuth (Germany).   In May 1996 Mr Fešar was arrested on suspicion of tax evasion; he was convicted as charged in May 1998 and sentenced to 18 months’ imprisonment. Given the length of his pre-trial detention, he was released. In the meantime, in April 1997 the applicant had lodged a constitutional appeal concerning his continued detention. In January 2001 the Constitutional Court examined that appeal and quashed a decision of March 1997 to continue his remand in custody. The case concerned the applicant’s complaint about the excessive length of his pre-trial detention and of the proceedings before the Constitutional Court to determine the lawfulness of his continued detention. He relied on Article   5   §§   3 and   4 (right to liberty and security) of the Convention.   The Court found that the reasons given to justify the applicant’s detention for nearly two years had not been relevant or sufficient and therefore held unanimously that there had been a violation of Article   5   §   3. It further found that the period taken to examine the applicant’s constitutional appeal, more than three years and nine months, had been excessive, and therefore held that there had also been a violation of Article   5   §   4. (The judgment is available only in English.)   Violation of Article 6 § 1 (length) Ommer v. Germany (No. 1) (no. 10597/03) Ommer v. Germany (No. 2) (no. 26073/03) The applicant, Manfred Ommer, is a Germany national who was born in 1950 and lives in Bergisch Gladbach (Germany). An Olympic Games sprinter in the 1970s, he was President of FC Homburg, a German Football League club, from 1986 to 1993.   In February 1987 Mr Onmer was questioned on charges of fraud with regard to business activities for an investment trust corporation, DETAG. He was ultimately acquitted in November 2001. His constitutional complaint about the excessive length of the criminal proceedings against him was dismissed in September 2002. In December 1990 he was notified of further fraud charges against him in relation to another company IHV, a real estate company; those investigation proceedings against him were discontinued in February 2003. The cases concerned Mr Ommer’s complaints about the excessive length of the criminal proceedings against him concerning DETAG and of the investigation proceedings against him concerning IHV. He also alleged that German law did not provide adequate compensation for those length-of-proceedings complaints. He relied on Article   6 §   1 (right to a fair trial within a reasonable time).   The Court noted that the proceedings in the first case had lasted more than 15 years and seven months at the investigation stage and three levels of jurisdiction. The domestic courts had acknowledged that that duration had been excessive. However, the Court considered that the applicant had not been granted adequate redress for those excessive length of proceedings: the domestic courts had not been in a position to reduce the applicant’s sentence as he had been acquitted; and, although the applicant had been reimbursed certain legal fees and loss of earnings, that had only been a consequence of his acquittal and not to provide compensation for the protracted length of proceedings against him. Nor did the Court find that any other remedy available under domestic law had been capable of providing the applicant with adequate compensation. The Court therefore found that the applicant had not lost his status as a victim and held unanimously that there had been a violation of Article   6   §   1.   As concerned the second case, the Court noted that the investigation proceedings had lasted approximately 12 years and two months. It considered that the authorities had not acknowledged that that duration had been excessive. Adequate redress had not been provided through the investigation proceedings having been discontinued as they had mainly only been discontinued because the applicant could not or no longer be found guilty of having committed a crime. Nor did the Court consider that, in the circumstances of the case, a complaint to the Federal Constitutional Court was an effective remedy that the applicant had been obliged to exhaust. The Court therefore found that the applicant had not lost his status as a victim and further held unanimously that there had been a violation of Article   6   §   1.   In respect of the first application, the Court awarded Mr   Ommer EUR   15,000 for non-pecuniary damage and EUR   5,000 for costs and expenses, and in respect of the second, it awarded him EUR   14,000 for non-pecuniary damage. (The judgments are available only in English.)   Violation of Article 3 (treatment) Violation of Article 5 § 3 Violation of Article 13 Malai v. Moldova (no. 7101/06) The applicant, Nicolai Malai, is a Moldovan national who was born in 1963 and lives in Chişinău.   In November 2004 charges were brought against Mr Malai for unlawful fishing. Shortly after, a detention warrant was issued against him; he was, however, only arrested in December 2005. He was released in January 2006 when the detention warrant expired. The criminal proceedings against him were terminated in October 2006 and he was ordered to pay a fine. The case concerned his complaint about the unlawfulness and conditions of his pre-trial detention. He alleged in particular that he had initially been kept for about 24 hours in a small cell called the “aquarium” which had no bed, chair, toilet or sink and which was intended for periods of detention which did not exceed three hours. He had then been transferred to an overcrowded, insect-infested cell below ground level with no ventilation and only a very weak electric light. He could only sleep maximum one hour per day as there were no beds. There was no toilet, just a bucket which was not kept separate from the rest of the cell. The food was also insufficient and of poor quality. He relied on Articles   3 (prohibition of inhuman or degrading treatment), 5   (right to liberty and security) and   13 (right to an effective remedy).   The Court noted that the applicant’s submissions concerning the conditions of his detention had been consistent with reports on detention establishments in Moldova by the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”). Nor had the Government disputed the applicant’s allegations concerning lack of food, the weak electric light, the sanitary facilities and the insect bites all over his body. The Court therefore held unanimously that there had been a violation of Article   3 on account of the hardship the applicant had endured during his detention. Recalling that it had previously found on numerous occasions that domestic remedies to complain about poor conditions of detention in Moldova had not been effective, the Court held unanimously that there had also been a violation of Article   13 in conjunction with Article   3. Lastly, the Court noted that the reasons given by the domestic courts to justify the applicant’s pre-trial detention had not been “relevant or sufficient” and therefore held unanimously that there had been a violation of Article   5   §   3.   Mr   Malai was awarded EUR   3,500 in respect of non-pecuniary damage and EUR   1,500 (less EUR   850 already paid in legal aid by the Council of Europe) for costs and expenses. (The judgment is available only in English.)   Violation of Article 5 § 3 Muszyński v. Poland (no. 24613/04) The applicant, Waldemar Muszyński, is a Polish national who was born in 1952 and lives in Rzeszów (Poland).   He was arrested and remanded in custody in March 2001 on suspicion of murdering his father. In June 2004 he was found guilty and sentenced to 25 years’ imprisonment. He complained in particular that his pre-trial detention was excessively lengthy and relied 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 excessive length of the applicant’s detention, two years and three months, and awarded him EUR   1,000 for non-pecuniary damage. (The judgment is available only in French.)   Violation of Article 6 § 1 (length) Wierzba v. Poland (no. 20315/04) The applicant is a Polish national, Sławomir Wierzba, who was born in 1980 and lives in Gdańsk.   In April 2002 Mr Wierzba was arrested on suspicion of robbery and remanded in custody. In July 2004 he was convicted as charged and sentenced to four years’ imprisonment, upheld on appeal in July 2007. Relying on Article   5 §   3 (right to liberty and security) and Article   6 §   1 (right to a fair trial within a reasonable time), he complained about the excessive length of his pre-trial detention and of the criminal proceedings against him.   The Court held unanimously that there had been a violation of Article   6   §   1 on account of the excessive length, five years and almost three months, of the criminal proceedings against him. The remainder of the application was declared inadmissible. (The judgment is available only in English.)   Violation of Article 6 § 1 (fairness) Pijevschi v. Portugal (no. 6830/05) The applicant, Pavel Pijevschi, is a Moldovan national who was born in 1976 and lives in Chişinău. At the time when he lodged his application he was imprisoned in Portugal.   On 20 January 2004 the Setúbal Court of First Instance found the applicant guilty of conspiracy, aiding and abetting illegal immigration, extortion and negotiating the employment of undocumented workers. He was sentenced to six years and nine months’ imprisonment and excluded from Portugal for 15 years. With a view to preparing an appeal, the applicant asked the court to provide him with the transcript of the hearing. The Court of First Instance subsequently informed him that he would have ten days from the date of service of the transcript in which to submit his grounds of appeal. The applicant filed his grounds of appeal within the prescribed time-limit. On 25 January 2005 the Évora Court of Appeal declared the appeal inadmissible as being out of time, as a result of a different interpretation of the procedural rules on time-limits for filing submissions. The applicant challenged that decision in the Constitutional Court but was unsuccessful.   Relying in particular on Article 6 § 1 (right of access to a court), the applicant complained that his appeal had been dismissed as being out of time although he had complied with the time-limit set by the Court of First Instance.   The Court found that the applicant could not be accused of having failed to act with the necessary care and diligence or of having committed an error for which he was to blame, especially as he had followed the instruction given by the Court of First Instance. It considered that the appellate courts’ particularly strict interpretation of a procedural rule – conflicting with the interpretation given by the Court of First Instance – had deprived the applicant of the right of access to the Court of Appeal for a review of the correctness of his conviction. It therefore held unanimously that there had been a violation of Article 6 § 1. (The judgment is available only in French.)   Violation of Article 6 § 1 (fairness) Violation of Article 1 of Protocol No. 1 Hagiescu and Others v. Romania (no. 7901/02) The applicants, Mircea Dumitru Grigore Hagiescu, Andrei Alexandrescu and Domnica Manicatide, are Romanian nationals who were born in 1931, 1943 and 1944 respectively and live in Bucharest. They are the heirs of the former owners of a property in Bucharest that was nationalised.   In a final judgment delivered in 1994 the Romanian courts found that the nationalisation of the property had been illegal. In 2001 an action for recovery of possession brought by the applicants in March 1999 was dismissed on the ground that the building in question was public property belonging to the State, by virtue of a new special law of 8 February 2001 whose provisions were deemed applicable to pending disputes. The Romanian courts nevertheless indicated that the applicants were entitled to an award of pecuniary compensation. Following that decision, the applicants applied for restitution of the property on the basis of the 2001 special law, but it does not appear from the evidence before the Court that they have been granted restitution of the property or any other form of pecuniary compensation to date.   Relying on Article 6 § 1 (right of access to a court) and Article 1 of Protocol No. 1 (protection of property), the applicants complained that their action for recovery of possession had been dismissed and that it was impossible for them to obtain restitution of the building in question.   The Court considered that the fact that the applicants’ action for recovery of possession had been dismissed by virtue of a law whose application to pending proceedings contravened the res judicata principle and which for many years had proved wholly ineffective in their case impaired the very essence of their right of access to a court, in breach of Article 6 § 1. In addition, the Court observed that the applicants had still not received any compensation and had no guarantee of recovering possession of the property at any time soon. The Court therefore held that the balance between the various interests at stake had not been struck and that there had been a violation of Article 1 of Protocol No. 1. Lastly, it considered that the question of the application of Article 41 (just satisfaction) was not ready for decision. (The judgment is available only in French.)   Struck out Sýkora v. Slovakia (no. 31519/02) The applicant, Milan Sýkora, is a Slovak national who was born in 1961 and, at the time of introduction of this application, was living in Bratislava.   The case concerned his complaint about civil proceedings with regard to the use of a flat. He relied on Article   6 §   1 (right to a fair hearing) and Article   1 of Protocol No.   1 (protection of property).   Given that the applicant had not replied to the Court’s requests for information since October 2007, the Court considered that he no longer wished to pursue his application and decided, unanimously, to strike the application out of its list of cases. (The judgment is available only in English.)   Violation of Article 2 (investigation) Khaylo v. Ukraine (no. 39964/02) The applicants, Sergey Fyodorovich, and his wife, Svetlana Ivanovna Khaylo, are Ukrainian nationals who were born in 1954 and currently live in Kyiv.   On 30 April 2002 the applicants found their relative, A.Kh., aged 44, who lived in an annex to their house, dead in his bed. The autopsy concluded that it was not possible to establish the cause of death. In May 2002 the police decided not to launch a criminal investigation as they considered that there had been no evidence of a homicide. The applicants appealed, claiming that it was highly probable that A.Kh., a key witness in criminal proceedings involving organised crime, had been killed. They noted in particular that they had found rubber gloves and a hammer on the table in A.Kh.’s room and that his height in medical records had been different to the height of the autopsied corpse. The case was subsequently remitted for additional investigations on numerous occasions; the Prosecutor’s Office ultimately discontinued the proceedings in March 2006 due to lack of evidence of a crime.   The case concerned, in particular, the applicants’ complaint about the authorities’ inadequate investigation into the death of their relative. They relied, in particular, on Article   2 (right to life).   Firstly, the Court considered that it had been the Ukrainian authorities’ duty to investigate A.Kh.’s sudden death, given that he had had no record of any illness and had, according to the applicants, been a key witness in criminal proceedings involving organised crime. It noted that a preliminary inspection of the scene of A.Kh.’s death had been immediately carried out by the police and medical experts. However, the body had not been measured, photographs taken had not been possible to develop as the film had a defect and the door of the bedroom had not been examined properly to determine whether it could have been locked from outside. Indeed, the case file submitted to the Court contained no records of any forensic or corporal evidence, highlighting the fact that some objects which could have been used as evidence (such as the gloves and hammer) had not been seized and examined. Nor had the subsequent remittals of the case in the years that followed A.Kh.’s death redressed the deficiencies of that initial inquiry. The Court was particularly struck by the fact that, in the decision of March 2006 to discontinue the proceedings, mention had been made of a medical certificate issued the day before A.Kh.’s death and which had been submitted by his employer. However, the contents of that certificate had not been used in the analysis of the likely causes of death and A.Kh.’s employer had not been questioned. Finally, the Court doubted whether the initial shortcomings of the investigation could now be redressed, as with the passage of time it was impossible to collect certain evidence or question the individual implicated by the applicants in the death of their relative as, in the meantime, he had moved abroad.   Given those circumstances, the Court held unanimously that there had been a violation of Article   2 on account of the ineffective investigation of the death of the applicants’ relative. It awarded the applicants EUR   3,000, jointly, in respect of non-pecuniary damage. (The judgment is available only in English.)   Violation of Article 2 (investigation) Muravskaya v. Ukraine (no. 249/03) The applicant, Tatyana Petrovna Muravskaya, is a Ukrainian national who was born in 1950 and lives in Slavyansk (Ukraine).   On 23 January 1999 Ms Muravskaya’s son, aged 18, disappeared. He was found dead in a lake on 18 March 1999. A forensic medical examination of the corpse was carried out the same day which concluded that the cause of death could not be established. Shortly after, the investigator of the Slavyansk Prosecutors’ Office, basing his decision on that forensic report and the statements of four witnesses who had been with the applicant’s son on the day he died and who testified that they had had a fight with him, refused to bring criminal proceedings. Further forensic examinations concluded that the applicant’s son had died as a result of violence and in particular a serious facial injury which could not have occurred through a fall. On 12 May 2000 the case was reclassified from an investigation into the beating of the applicant’s son to one of intentional grievous bodily harm which had caused his death. Numerous investigators’ decisions to suspend the criminal proceedings were repeatedly quashed and instructions were given to take further investigative steps. In particular, it was requested that certain issues be clarified such as: why had the applicant submitted that certain individuals had confessed to her that her son had been murdered; and, why had the police omitted to search the lake where the applicant’s son had been found although neighbouring lakes had been checked. Most recently a decision to suspend the investigation because it was impossible to establish the identities of those responsible was quashed and the case remitted for further investigation. The investigation is currently still pending.   Relying on Article 2 (right to life), the applicant alleged that the authorities failed to carry out an effective and adequate investigation into the death of her son.   The Court observed that the efficiency of the investigation into the disappearance and death of the applicant’s son had been undermined at the initial stages. Firstly, the law-enforcement bodies had failed to carry out a prompt and comprehensive search for the applicant’s son, meaning that the deterioration of the corpse had reduced the chances of establishing more precisely the cause of death. Secondly, the initial forensic examination had served as a strong argument not to investigate the claim that the applicant’s son had died a violent death, despite subsequent reports which had consistently concluded that he had died as a result of a serious facial injury. It was not until 14 months after the corpse had been found that the case had been reclassified. Furthermore, clear instructions to take further investigative steps had not always been followed. In general, the Court noted that a series of delays had hampered the investigation’s chances of being brought to a successful conclusion and that the domestic authorities had even acknowledged the investigation’s shortcomings and disciplined those concerned, in particular the initial forensic expert. The Court therefore held unanimously that there had been a violation of Article   2 on account of the authorities’ failure to carry out an effective investigation into the disappearance and death of the applicant’s son. (The judgment is available only in English.)     Repetitive cases   The following cases raise issues which have already been submitted to the Court.   Violation of Article 6 § 1 (fairness) Russu v. Moldova (no. 7413/05) The Court found that there had been the above violation in this case concerning the domestic courts’ failure to summon her when her case was examined on appeal.   Violation of Article 1 of Protocol No. 1 Violation of Article 14 in conjunction with Article 1 of Protocol No. 1 Onofrei v. Romania (26841/03) Poppov v. Romania (no. 26839/03) Ranete v. Romania (no. 26837/03) The Court found the above violations in these three cases in which the applicants complained that the severance pay due to them on account of their discharge to the reserve list had been unlawfully liable to income tax and that they had been discriminated against as compared with other servicemen in an analogous position.   Violation of Article 6 § 1 (fairness) Violation of Article 1 of Protocol No. 1 Preoteasa v. Romania (no. 40335/02)   Violation of Article 1 of Protocol No. 1 Shapkina v. Ukraine (no. 20028/04) The Court found the above violations in these two cases concerning the domestic authorities’ failure to enforce final judgments in the applicants’ favour.   Violation of Article 1 of Protocol No. 1 Dreptu v. Romania (no. 19835/03) Moroianu and Others v. Romania (no. 25008/05) Reichardt v. Romania (no. 6111/04) The Court found the above violation in these three cases concerning actions for recovery of possession of property.   Violation of Article 1 of Protocol No. 1 Kerekeş v. Romania (no. 2736/02) The Court found the above violation because the applicants had been unable to use, and collect the rent from, a building which had been returned to them.   Violation of Article 1 of Protocol No. 1 Devecioğlu v. Turkey (no. 17203/03) The Court found the above violation in this case concerning the applicants’ complaint that the authorities had deprived them of their property without paying compensation. The Court considered that the question of the application of Article   41 (just satisfaction) was not ready for decision.   Violation   of Article 6 § 1(fairness) Erükçü   v. Turkey (no. 4211/02) The Court found the above violation in this case in which the applicant complained that he had been tried as a civilian by a military court.   Violation of Article 6 § 1 (fairness) Veritas v. Ukraine (no. 39157/02) The Court found the above violation concerning the applicant’s complaint that the Supreme Court had overstepped the limits of its jurisdiction in her case.     Length-of-proceedings cases   In the following cases, the applicants complained in particular under Article   6   §   1 about the excessive length of (non-criminal) proceedings. The Court held that in the case of Kushnarenko there was no need to examine separately the applicant’s complaint under Article   13 (right to an effective remedy).   Violation of Article 6 § 1 (length) Rafael Ahlskog v. Finland (no. 23667/06) Fontana v. Italy (no. 1452/03) Kushnarenko v. Ukraine (no. 18010/04)   Violation of Article 6 § 1 (length) No violation of Article 13 Buffolino v. Italy (no. 32769/02) Di Maria v. Italy (no. 32750/02 Di Vico v. Italy (no. 32751/02) La Frazia v. Italy (no. 32775/02) Morone v. Italy (no. 32770/02) Rubortone v. Italy (no. 32776/02)   ***   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 Adrien Raif-Meyer (telephone: 00 33 (0)3 88 41 33 37) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) 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.