CEDH · PRESS;GENERAL;ENG — 2 juillet 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s2F74286A { width:64.1pt; display:inline-block } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .s97030D50 { width:59.47pt; display:inline-block } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sF6640C30 { width:31.48pt; display:inline-block } .s201FBFFF { width:299.57pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s49F7D146 { width:29.44pt; display:inline-block } .s913F377E { width:252.91pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .sB4476AD { width:112.13pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     349   2.7.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Poland, Sweden, France and Romania   The European Court of Human Rights has today notified in writing the following six Chamber judgments, of which only Zwierzyński v. Poland is final: [1]   Former Section 1   (1)     Zwierzyński v. Poland (application no. 34049/96)     Just satisfaction In its principal judgment (16 June 2001) the Court held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights and reserved its decision regarding Article 41 (just satisfaction).   The applicant, Ryszard Zwierzynski, is a Polish national, born in 1949 and living in Olsztyn.   In 1952 a building belonging to the applicant’s father was expropriated in the public interest. After his death, his heirs, including the applicant, continued the steps he had taken to recover the property. Finally, on 24   July   1992, the Minister for Economic Affairs declared the expropriation procedure in 1952 null and void. On 23 November 1993 the Supreme Administrative Court upheld the Minister’s annulment decision. As a result, the applicant became the owner of the building retrospectively.   However, since 23 November 1993 the administrative decision restoring ownership of the building to the applicant has still not been executed on account of proceedings brought nearly two years later by the present occupier (the Łomża Regional Police Authority). Initially, the Regional Police Authority brought an action seeking title to the property by length of unchallenged occupation. These proceedings are currently pending in the district court, to which the Supreme Court, after quashing earlier decisions, remitted the case.   The Łomża Regional Police Authority also informed the heirs of the person who had owned the property before the Second World War of the outcome of the action to divide the estate of the applicant’s parents. Considering that they had rights over the building, the heirs of the former owner took steps to reopen these proceedings, but the courts gave judgment against them. The applicant relied on Article 6 § 1, alleging that his case had not been heard within a reasonable time. He further alleged a violation of Article 1 of Protocol No. 1 (protection of property), in that his right of property was infringed following unfair proceedings.   The European Court of Human Rights held unanimously that the State should return the property to the applicant within three months from the date on which the judgment became final or, failing that, that it should pay him 60,500 euros (EUR) in pecuniary damage for deprivation of the property. The Court also awarded the applicant EUR 100,000 for the pecuniary damage sustained as a result of being deprived of enjoyment of the property, EUR   16,500 for non-pecuniary damage and EUR 3,090 for costs and expenses.   (The judgment is available only in French.)   (2)     S.N.   v. Sweden (no. 34209/96)   No violation Article 6 §§ 1 and 3 (d) The applicant, S.N., a Swedish national born in 1965 and living in Löttorp, was accused by a ten-year-old boy, M., of sexual abuse. In April 1995 a police interview with M. took place and was recorded. On S.N.’s request, the police carried out another recorded interview with M. in September 1995. The applicant’s counsel did not attend, but indicated to the police officer interviewing M. which issues needed to be addressed. On 29 September 1995 the applicant was indicted for sexual acts with a child.   The District Court played the recordings of the child’s interviews at the trial. No request for M. to be heard in person by the court was made. Relying almost entirely on the child’s assertions, the court convicted the applicant and sentenced him to imprisonment. On the applicant’s appeal, the Court of Appeal upheld the conviction, although it reduced the sentence. The court acknowledged that there was no technical evidence supporting the child’s allegations, which were sometimes imprecise. However, it found that the police interviews provided sufficient evidence for the applicant’s guilt to be established. He unsuccessfully lodged an appeal with the Supreme Court.   S.N. claimed that he did not have a fair trial, as he was not given an opportunity to question M. He maintained that the police interviews with M. were flawed and that there was no evidence in the case to support M.’s statements. He relied on Article 6 §§ 1 (right to a fair hearing) and 3 (d) (right to examine witnesses).   The Court observed that the statements made by M. were virtually the sole evidence on which the courts’ findings of guilt were based. The witnesses heard by the courts – M.’s mother and his school teacher – had not seen the alleged acts and gave evidence only on the perceived subsequent changes in M.’s personality. The Court also accepted the applicant’s view that he could not have obtained the appearance of M. in person before the courts.   However, the applicant’s counsel had consented not to be present during the second police interview, notwithstanding the resulting handicap to the defence, and had also accepted the manner in which the interview was to be conducted. Although it had been open to the applicant’s counsel to ask for a postponement of the interview or to request that it be video-taped, he had chosen not to do so. Furthermore, he was able to have questions put to M. by the police officer conducting the interview. Having subsequently listened to the audio tape and read the transcript of the interview, he was apparently satisfied that the questions he had indicated to the police officer had actually been put to M.   Accordingly, there has been no violation of Article 6 § 3 (d) on the ground that the applicant’s counsel was absent during the second police interview.   Nor could it be said that the applicant had been denied his rights under Article 6 § 3 (d) on the ground that he was unable to examine or have examined the evidence given by M. during the trial and appeal proceedings. The Court noted that the videotape of the first police interview was shown during the trial and appeal hearings and that the record of the second interview was read out before the District Court and the audio tape of that interview was played back before the Court of Appeal. Those measures had to be considered sufficient to have enabled the applicant to challenge M.’s statements and his credibility in the course of the criminal proceedings. Indeed, that challenge resulted in the Court of Appeal reducing the applicant’s sentence because it considered that part of the charges against him had not been proved.   The Court reiterated that evidence obtained from a witness under conditions in which the rights of the defence could not be secured to the extent normally required by the Convention should be treated with extreme care. However the Court was satisfied that the necessary care was applied in the evaluation of M.’s statements. The Court therefore considered that the criminal proceedings against the applicant, taken as a whole, could not be regarded as unfair.   The Court held by five votes to two that there had been no violation of Article 6 §§ 1 and 3 (d). (The judgment is available only in English.)   Section 2   (3)     Göktan v. France (no. 33402/96)   No violation Article 4 of Protocol No. 7   No violation of Article 6 § 1 Ali Riza Göktan is a Turkish national, born in 1953 and currently living in Turkey. He arrived in France in 1974 and at the material time was a business employee in Strasbourg. After being charged with drug trafficking and placed in pre-trial detention, he was convicted on 3 June 1991 by the Strasbourg Criminal Court of breaching the drug-trafficking laws and committing a customs offence of illegally importing goods. He was sentenced to five years’ imprisonment, an order permanently excluding him from French territory, payment of 1,070,000 French francs (FRF) in lieu of forfeiture and a FRF 400,000 customs fine.   The Criminal Court also ordered imprisonment in default under Article 382 of the Customs Code (that measure, which survives in respect of debts to the Treasury only and serves to guarantee the recovery of State debts, consists in detaining a recalcitrant debtor in a short-stay prison). On 27 June 1991 the public prosecutor requested enforcement of the measure for two years for non-payment of the customs fine.   On 4 September 1994 Mr Göktan had served his prison sentence, but remained in prison in accordance with the two-year imprisonment in default measure. He challenged the implementation of that measure by making an urgent application to the tribunal de grande instance and the Court of Appeal, which both dismissed his appeals. On 26 October 1994 the Court of Cassation declared that his right to appeal on points of law had been forfeited.   The applicant, who considered that he was serving two prison sentences for the same offences, made a request for the two sentences to run concurrently. In a judgment of 21 May 1996 the Colmar Court of Appeal dismissed his request on the ground that, legally speaking, imprisonment in default was an enforcement measure and not a penalty. The Court of Cassation dismissed his appeal on 22 May 1996 on the ground, inter alia , that Article 6 of the Convention did not apply to requests for penalties to run concurrently.   After serving all his sentences, Mr Göktan was deported to Turkey in accordance with the measure excluding him from French territory.   The applicant alleged that enforcing the imprisonment in default measure at the same time as a prison sentence had the effect of imposing two successive prison sentences on him for the same offences. He submitted that the refusal to order the sentences to run concurrently infringed Article 4 of Protocol No. 7 (right not to be tried or punished twice). Relying on Article 6 § 1 (right to a fair trial), he complained of the automatic nature of the penalty, the failure to respect the rights of the defence and the lack of sufficient reasons for applying the imprisonment in default measure.   The Court considered that the imprisonment of the applicant in default of payment of the customs fine was not an enforcement measure, but a penalty for the purposes of Article 4 of Protocol 7. It concluded that the applicant had been punished under the criminal law by the enforcement of the imprisonment in default measure, whereas he had already been punished by the prison sentence for drug trafficking and the customs fine for illegally importing goods. Admittedly, Article 4 of Protocol No. 7 provided that no one should be tried or punished twice for the same offence. However, the Court found that in the present case there was a notional plurality of offences in that the single criminal act could be broken down into two separate offences: a general criminal offence and a customs offence. It expressed reservations, however, concerning the system of imprisonment in default, which it considered to be an outdated custodial sentence that had survived only for the benefit of the Treasury. The Court accordingly concluded, unanimously, that there had been no violation of Article 4 of Protocol No.   7.   The Court also held that the complaint based on failure to respect the rights of the defence had not been substantiated and that, in any event, the rights of the defence had been respected before the Criminal Court which had imposed the imprisonment in default measure and that the same was true of the reasons given for the judgment. With regard to the period of imprisonment in default, which was fixed by statute, the Court held that nothing compelled the legislature to vary that penalty on the basis of the circumstances of the case.   Accordingly, the Court held, by six votes to one, that there had been no violation of Article 6 § 1 (The judgment is available only in French.)   (4)     Budescu and Petrescu v. Romania (no. 33912/96)   Violation Article 6 § 1   Violation Article 1 of Protocol No. 1 Maria Budescu and her daughter Maria Mihaela Petrescu are Romanian nationals, born in 1903 and 1932 respectively and living in Bucharest. In 1950, under the decree on nationalisation no. 92/1950, the State took possession of property comprising three flats in Bucharest which Mrs Budescu and her husband had acquired in 1937.   On 14 April 1993 Mrs Budescu lodged an action with the Bucharest Court of First Instance to establish title to property. She submitted that under decree no. 92/1950 the property of employees could not be nationalised and that as her husband was a construction engineer, their property had been unlawfully nationalised. In her capacity as heir, Mrs Petrescu applied to join the proceedings, requesting restitution of the property in question to herself and her mother jointly. In a judgment of 12 January 1995 the court upheld their claims on the ground that the property had been wrongfully nationalised and the State had not legally acquired title to it. After that judgment had become final and binding, the mayor of Bucharest ordered restitution of the property to the applicants, who, from 16 October 1995, ceased paying rent for the flat they were occupying.   The Procurator-General of Romania lodged an application with the Supreme Court of Justice to have the judgment of 12 January 1995 quashed. This was done on 7 May 1996 on the ground that the courts did not have jurisdiction to review application of the decree on nationalisation.   Following a second application for restitution of their property under Law no. 112/1995, on 7   September 1998 the administrative board ordered restitution of the flat they had been occupying as tenants. However, in the meantime, although the applicants had informed Bucharest City Council that a dispute was pending concerning title to the property, the State sold two of the flats to other tenants of the house. On 8 February 2002 the applicants lodged applications to have the contracts of sale to the former tenants set aside. Those applications are now pending before the Bucharest Court of First Instance.   Relying on Articles 6 § 1 (right to a fair trial) and 13 (right to an effective remedy), the applicants complained of the Supreme Court of Justice’s refusal to recognise the courts’ jurisdiction to determine an action to establish title to property. They also complained of an infringement of the right to respect for enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1 (protection of property).   The Court noted that in quashing a final judgment the Supreme Court of Justice had breached the principle of legal certainty and, in so doing, the applicants’ right to a fair trial. It also considered that the ruling that the courts did not have jurisdiction to examine the applicants’ action to establish title to property was in itself contrary to the right of access to a court. The Court therefore held, unanimously, that there had been a violation of Article 6 § 1 on account of the refusal of the right of access to a court and the lack of a fair trial.   The Court went on to note that the applicants’ property right had been established by a final judgment. Since that right was irrevocable, the Court considered that they had lawful title to a possession within the meaning of Article 1 of Protocol No. 1. Accordingly, the judgment of the Supreme Court of Justice recognising the State as lawful owner of the building in question had had the effect of depriving the applicants of their possession. The Court noted that they had been deprived of part of their possession for more than fifty years. It also noted that the applicants had not received compensation reflecting the real value of their property despite their efforts to obtain full restitution of it. The Court therefore considered that the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights had been upset and that the applicants had borne and continued to bear an individual and excessive burden.   Accordingly, the Court concluded unanimously that there had been a violation of Article 1 of Protocol No. 1, held that the State should return to the applicants within three months of the date on which the judgment became final the part of the building which had not yet been returned to them and awarded them jointly EUR 14,000 for non-pecuniary damage. (The judgment is available only in French.)   (5)     Motais de Narbonne v. France (no. 48161/99) Violation Article 1 of Protocol No. 1 The seven applicants are French nationals. They all live in the département of La Réunion, except for Mrs Marie Thérèse Victoria Hélène Motais de Narbonne who lives in Paris. The applicants are Mr Marie Camille Victor André Augustin Oscar Motais de Narbonne, born in 1926, Mr Marie Joseph Edouard Camille Roland Motais de Narbonne, born in 1927, Mrs Marie Thérèse Arlette Motais de Narbonne, born in 1929, Mr Marie Joseph Jean Claude Motais de Narbonne, born in 1931 and Mrs   Marie Thérèse Victoria Hélène Motais de Narbonne, born in 1932. Mr Pierre Victor Marie Dupuy, born in 1957 and Mrs Claudine Marie Hélène Dupuy, born in 1961, applied in their capacity as heirs.   In an order of 1 December 1982 the chief administrative officer of La Réunion made a declaration that it was in the public interest for the département to acquire land in Saint-Denis belonging to Mrs Marie Josephine Clémentine Piveteau, née Motais de Narbonne, “with a view to constituting land reserves for council housing estates”. The expropriation order was made on 6 July 1983 and compensation fixed at approximately FRF 1,966,700 by a judgment of 24 February 1983. The département sold the land to the Saint-Denis District Council on 27   August 1984, which in turn exchanged part of it with the Société immobilière de la Réunion in May 1988.   In 1989, since the land had been lying fallow, the former owner applied to the Saint-Denis tribunal de grande instance for re-conveyance of the property, subsequently seeking instead, payment of its current value, less the expropriation compensation already received.   In a judgment of 19 May 1992 the court held that the request was well-founded in principle because in the five years following the expropriation order no works had been carried out and the département had therefore not complied with Article L. 12-6 of the Expropriation Code. The département appealed. In a judgment of 9 August 1996 the Saint-Denis Court of Appeal set aside the lower court’s judgment on the ground that the land had been expropriated in order to constitute land reserves and that the expropriating body was not therefore obliged to give the land the stated use within five years. The heirs lodged an appeal on points of law, which was dismissed in a judgment of 30 September 1998.   The applicants complained, under Article 1 of Protocol No. 1 (protection of property), of a disproportionate interference with their right of property.   The Court noted that an expropriation of which the purpose was land development and the implementation of a social policy pursued a legitimate objective of “public use”. It reiterated in that connection that there had to be a reasonable relationship of proportionality between the said aim and the means employed so that a disproportionate burden was not placed on the person concerned. Notwithstanding the payment of expropriation compensation reflecting the market value of the property, such a burden could result from, among other things, the lapse of a substantial period of time between taking the decision to expropriate and actually implementing the project in the public interest. That could have the effect of depriving the person concerned of a capital gain generated by the property in question. The Court noted that in the present case nineteen years had elapsed since the land had been expropriated and no steps had been taken to develop it. It considered that keeping expropriated land in reserve even for a long period did not necessarily result in a breach of Article 1 of Protocol No. 1, but that this provision obliged the States to protect individuals from the risk of land being earmarked for reserves in such a way as to allow a form of speculation in real estate to their detriment. In the present case the applicants submitted that the land in question had substantially increased in value over the nineteen-year period in question, and the Government did not dispute that. The Government claimed that building works had not started because no sewerage system was in place, which was the responsibility of the local authorities. The Court found that this state of affairs was imputable to the public authorities and held, accordingly, that the reason for keeping the land in reserve had not been in the public interest. The Court considered that the applicants had been unfairly deprived of a capital gain generated by the expropriated land and held unanimously that there had been a violation of Article 1 of Protocol No. 1. It awarded the applicants jointly EUR 13,032.26 for costs and expenses and held that the question of the application of Article 41 (just satisfaction) was not yet ready for decision. (The judgment is available only in French.)   Section 4   (6)     Dacewicz v. Poland (no. 34611/97)   Violation Article 5 § 3 Zbigniew Dacewicz was born in 1955 and lives in Biała Podlaska, Poland.   On 2 January 1996 the applicant was arrested by the police on suspicion of having committed burglary and on 4 January 1996 he was brought before a district prosecutor, charged with two counts of burglary and detained on remand.   In January and February 1996 the applicant lodged several unsuccessful complaints, on the ground that, following his arrest, he had not been brought before a judge but before the prosecutor, who was not authorised by law to exercise judicial power.   On 21 February 1996 the District Prosecutor informed the applicant that, at the material time, the prosecutor had the power to detain him on remand. Amendments to Polish criminal legislation, stipulating that only courts of law could impose detention on remand, entered into force on 4 August 1996.   On 23 June 1996 the District Court convicted the applicant of dealing with stolen goods.     On 17 July 1996 the applicant made a complaint to the Supreme Court to which he received a reply stating that his doubts as to his being detained were “unreasonable”. The applicant complained, relying on Article 5 § 3, that after his arrest he was not brought promptly before a judge or officer authorised by law to exercise judicial power.   The Court held unanimously that there had been a violation of Article 5 § 3 and that the finding of a violation in itself constituted sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. It awarded the applicant 8,900 Polish zlotys less 630 euros received by way of legal aid from the Council of Europe for costs and expenses. (The judgment is available only in English.)   ***   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 ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [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.