CEDH · PRESS;GENERAL;ENG — 3 octobre 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s8937497D { width:326.9pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s75A32C27 { border-collapse:collapse } .s938C1CCA { padding-right:5.4pt; padding-left:5.4pt; vertical-align:top } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .s9E7DF94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:12pt } .sDB00410C { width:132.14pt; display:inline-block } .sD31CCF7E { width:91.46pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     465   3.10.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Italy, Germany and Austria   The European Court of Human Rights has today notified in writing the following five Chamber judgments, of which only the friendly-settlement judgments are final [1] :   Section 1         Friendly settlements The applicants in the following three Italian cases complained about their prolonged inability - through lack of police assistance - to recover possession of their apartments and about the duration of the eviction proceedings. They relied on Article 6 § 1 (right to determination of civil rights within a reasonable time) and Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights.   The cases have been struck out following friendly settlements in which the following amounts, in euros (EUR), are to be paid for any non-pecuniary damage, pecuniary damage, costs and expenses. (The first two judgments are available only in English whereas Rosalba Pugliese v. Italy is available only in French.)   (1)     Gianotti v. Italy (application no. 39690/98) EUR 4,500 (2)     Calvagno v. Italy (no. 41624/98) EUR 7,200 (3)     Rosalba Pugliese v. Italy (no. 43986/98) EUR 4,500     Section 3   (4)     Böhmer v. Germany (no. 37568/97)   Violation Article 6 §§ 1 and 2 Gino Böhmer, a German national born in 1966, was convicted on 14 June 1991 of receiving stolen goods and theft. He was sentenced to two-year’s imprisonment, suspended on probation for four years. The probationary period was extended following another conviction in 1993.   In 1995 he appealed against two further fraud convictions. He also requested a retrial following an additional penal order for fraud issued on 21 December 1995.   Without waiting for the outcome of those proceedings, on 18 April 1996, Hamburg Regional Court revoked the suspension of the applicant’s original two-year sentence on the ground that   he had committed further criminal offences during his probation period. This decision was confirmed by Hamburg Court of Appeal which, after taking evidence under section 308 of the Code of Criminal Procedure, concluded with “certainty” that the applicant had committed fraud during his probation period.   The applicant complained that the Court of Appeal’s decision contained a finding of guilt which was still at issue in pending criminal proceedings before another court, in breach of the presumption of innocence. He relied on Article 6 §§ 1 (right to a fair hearing) and 2 (presumption of innocence).   The European Court of Human Rights observed that the Court of Appeal, sitting as court supervising the execution of sentences, had assumed the role of the Hamburg District Court, the competent trial court, and had unequivocally declared that the applicant was guilty of a criminal offence. Finding that the Hamburg Court of Appeal’s reasoning, in its decision of 14 October 1996, offended the presumption of innocence, the Court held unanimously that there had been a violation of Article 6 §§ 1 and 2. (The judgment is available only in English.)   (5)     Kucera v. Austria (no. 40072/98)   No violation Article 6 § 3 (c) Helmut Kucera, an Austrian national born in 1957, is currently detained at Krems Stein Prison (Austria).   The Public Prosecutor submitted that on 16 June 1993 the applicant had raped A.H., beaten and strangled her, forced her to swallow drugs and threatened to kill her. On 5 September 1993 he had raped E.P., beaten and strangled her, forced her to swallow drugs, burned her skin with cigarettes and cut her vagina with a knife causing a deep laceration as well as opening her abdominal cavity. The Court of Assizes ( Geschworenengericht ) of Vienna Regional Court ( Landesgericht ) convicted the applicant of both offences of aggravated rape and sentenced him to 14 years’ imprisonment.   On 29 August 1996 the applicant filed a plea of nullity and an appeal against sentence. In his appeal, he submitted that the Court of Assizes had failed to give sufficient weight to his poor education, difficult childhood and state of intoxication. He did not ask to attend the hearings before the Supreme Court or Vienna Court of Appeal ( Oberlandesgericht ).     On 8 October 1996 his plea of nullity was rejected.   On 18 December 1996 Vienna Court of Appeal, after having held a hearing in the absence of the applicant but in the presence of his defence counsel, dismissed his appeal. The court   found that the applicant’s partial confession did not qualify as a mitigating circumstance. Further, there were additional aggravating circumstances such as the particular cruelty of the offences and their concurrent nature. A poor education and difficult childhood could not be considered as mitigating circumstances, as the applicant was now an adult. Neither did that explain his brutality. Experts had stated that his intoxication had had no bearing on him committing the offences. Furthermore, he had not been suffering from a mental defect, but frustration and aggression, and he had shown no sign of remorse.   The applicant complained that the Vienna Court of Appeal heard his appeal against sentence in his absence. He relied on Article 6 § 3 (c) (right to defend self in person or through legal assistance of own choosing).   The European Court of Human Rights found that the applicant’s presence at the hearing on his appeal against sentence was not necessary in the interests of justice. The points raised by the applicant in his appeal could have been dealt with adequately by the Court of Appeal on the basis of the submissions made by the applicant’s lawyer at the hearing and the case file. The state of intoxication of the applicant at the time when he had committed the offence had been the object of an expert report and the applicant’s neglected education and difficult childhood was essentially historical information. There was nothing to show that, in the proceedings at issue, the Court of Appeal had to evaluate the applicant’s personality, his character, his motives for committing the offence, or his dangerousness. The Court therefore held unanimously that there had been no violation of Article 6 § 3 (c). (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:   Emma Hellyer (telephone: (0)3 90 21 42 15)   Stéphanie Klein (téléphone : (0)3 88 41 21 54) 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.