CEDH · PRESS;GENERAL;ENG — 12 novembre 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 } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s32122955 { width:9.82pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA0390550 { width:31.21pt; display:inline-block } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s5A29A8C7 { width:12.53pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .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     565   12.11.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING the Czech Republic, the Netherlands, Poland, Slovakia and Sweden     The European Court of Human Rights has today notified in writing the following eight Chamber judgments, of which only the friendly-settlement judgment is final. [1]   Section 2 Friendly settlement (just satisfaction) (1)     Wessels-Bergervoet v. the Netherlands (application no. 34462/97)   R.E.W. Wessels-Bergervoet, a Dutch national, and her husband have always lived in the Netherlands. Her husband was granted a married person’s old age pension under the General Old Age Pension Act ( Algemene Ouderdomswet ; "AOW") as from 1 August 1984. However, his pension was reduced by 38% as he had not been insured under the Act during a period totalling 19 years, when he had worked in Germany. No appeal was filed against this decision.   The applicant was granted an old age pension under the AOW as from 1 March 1989 on the same basis as her husband’s pension; reduced by 38%. She appealed unsuccessfully.   She complained that the only reason for the reduction in her pension was that she was married to a man who was not insured under the AOW on the grounds of his employment abroad and that a married man in the same situation would not have had his pension reduced for this reason. She maintained, in particular, that the reduction in her pension was the result of discriminatory treatment.   Under Article 41 (just satisfaction), she requested 94,175.80 euros (EUR) for pecuniary damage, to cover the loss of AOW benefits between 1   March 1989 and 1 January 2001, including a claim for legal interest over that period and for future loss of income resulting from the reduction of her AOW pension. She also claimed EUR 4,537.80 for non-pecuniary damage and EUR 8,326.66 for legal costs.   In its principal judgment of 4 June 2002 the Court held, unanimously, that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights. It also held that the question of the application of Article 41 was not ready for decision.   The claim under Article 41 has today been struck out following a friendly settlement in which the applicant is to receive a total of EUR 68,040.08 and, from 1 July 2002, a full AOW pension (with no 38% deduction). (The judgment is in English only.)   (2)     Běleš and Others v. the Czech Republic (no. 47273/99)       Violation Article 6 § 1 The applicants, Pavel Běleš, Lenka Chvojková, Galina Krejčová, Josef Kreml, Petr Pudil, Zdeněk Procházka and Radomír Růžička, are Czech nationals born in 1942, 1954, 1950, 1944, 1962, 1948 and 1959 respectively and living in Prague. Since 1991 they have been members of the Homeopathic Association (Homeopatická spolecnost), which was itself a member of another association called the J.E. Purkyne Czech Medical Society (Ceská lékarská spolecnost J.E. Purkyne).   In December 1996 the Medical Society decided to strike the Homeopathic Association off its list of members. The applicants, who claimed that this damaged their association’s reputation, lodged an application with the domestic courts to have the decision set aside. The Prague District Court ( obvodní soud ) and then the Municipal Court ( mestský soud ) dismissed it on the ground that they had not lodged an administrative application. The Municipal Court further dismissed their application for leave to appeal on points of law. They appealed to the Constitutional Court ( Ústavní soud ), which, on 12 August 1998, declared their appeal inadmissible since they had failed to exhaust remedies because they had not lodged an appeal on points of law.   Relying on Article 6 § 1 (right to a fair trial), the applicants complained of the unfairness of the proceedings before the tribunals of fact. They submitted further that they had been deprived of the right of access to a court because their constitutional appeal was dismissed.   The Court held that striking off the Homeopathic Association had infringed the applicants’ right to practice medicine. Article 6 § 1 was therefore applicable in the present case.   Noting that the Medical Society was not an administrative authority and that the rule relied on by the applicants did not specify under which provision proceedings should be brought in the relevant courts, the Court considered that the applicants could not be held to have committed an error in basing their action on the provisions relied on. The courts’ refusal to determine the merits of the case had been motivated by their particularly strict interpretation of a procedural rule, and had infringed the right to a court. Accordingly, the Court concluded unanimously that the disregard for the applicants’ right to a fair trial had amounted to a breach of Article 6 § 1.   The Court held that the application of the rules governing the admissibility of constitutional appeals was not conducive to ensuring the proper administration of justice because it prevented litigants from using an available remedy. It found that a procedural requirement had been construed in such a way as to prevent the applicants from having their application examined on the merits, which had resulted in a breach of the right to effective protection by the courts. Accordingly, the Court concluded unanimously that there had been a violation of Article 6 § 1 regarding access to a court. It held that the finding of a violation constituted in itself sufficient just satisfaction and awarded the applicants EUR 330 for costs and expenses. (The judgment is in French only.) (3)     Zvolský and Zvolská v. the Czech Republic (no. 46129/99)         Violation Article 6 § 1                     Violation Article 1 of Protocol No. 1 Arnošt Zvolský and Jiřina Zvolská are Czech nationals, born in 1947 and 1945 respectively and living in Pardubice.   In 1967 the applicants signed a sale and gift agreement (kupní a darovací smlouva) with M.R. by which M.R. sold them a house situated in Srch and transferred the adjoining agricultural land to them free of charge. In accordance with the legislation in force at that time, the applicants undertook to work for the socialist cooperative farming the land, and paid 30,000 Czechoslovakian korunas in compensation for the value of the land transferred.   In July 1993 M.R. lodged an application to have the transfer of the agricultural land set aside. The Pardubice District Court (okresní soud) granted his application under Law no. 229/1991 relating to land ownership. The Hradec Králové Regional Court (krajský soud) upheld that judgment and refused the applicants leave to appeal on points of law on the ground that their application did not concern a decision of crucial legal significance (rozhodnutí po právní stránce zásadního významu) .   The applicants appealed to the Supreme Court (Nejvyssí soud), which, in a judgment served on them on 11 September 1997, declared their appeal on points of law admissible. Further, on 4 August 1998 the Constitutional Court (Ústavní soud) declared their appeal inadmissible on the ground that it had been lodged out of time.   Relying on Article 6 § 1 (right to a fair trial), the applicants complained that the Constitutional Court had dismissed their appeal without examining the case on the merits. They also complained, under Article 1 of Protocol No. 1 (protection of property), of an infringement of their right to peaceful enjoyment of their possessions on account of the fact that the land in question had been returned to its former owner.   The Court found that the requirement under the Constitutional Court Act to exhaust all remedies, without any distinction being drawn between ordinary appeals and special appeals, and the lack of foreseeability under the Code of Civil Procedure as to whether an appeal on points of law would be admissible infringed the very essence of the right of appeal by imposing a disproportionate burden on the applicants which upset the fair balance that must be struck between the legitimate concern to ensure that formal conditions were put in place for lodging an appeal with the Constitutional Court and the right of access to that court. Accordingly, the Court concluded unanimously that there had been a breach of Article 6 § 1 of the Convention.   The Court further held that there had been an interference with the applicants’ right to peaceful enjoyment of their possessions, and that this interference was provided for by the Land Ownerhip Act and had the legitimate aim of mitigating the effects of the infringements of property rights inflicted under the Communist regime. However, the Court held that the possibility of setting an agreement aside without taking account of the compensation paid by the applicants at the time or ascertaining whether the former owner had voluntarily transferred the land did not strike a fair balance between the protection of property and the general interest. Accordingly, the Court concluded unanimously that there had been a breach of Article 1 of Protocol No. 1.   It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage incurred, and awarded the applicants EUR 50,000 for pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is in English/French only.)   Section 4   (4)     Płoski v. Poland (no. 26761/95)                                                              Violation Article 8 Wacław   Płoski was born in 1949 and lives in Wrocław, Poland.   In February 1994 he was arrested and charged with larceny and detained on remand.   Following his mother’s death on 2 July 1994, Mr Płoski applied for prison leave to attend her funeral. His application was accompanied by the statement of a prison officer supporting his request. On 4 July 1994, however, Wrocław-Śródmieście District Court refused permission to grant leave, considering the applicant “a habitual offender whose return to the prison cannot be guaranteed.”   On 5 July 1994 the Penitentiary Judge rejected the application.   Following his father’s death on 3 August 1994 Mr Płoski submitted an application for leave to attend his funeral, accompanied by a statement from a prison officer confirming that the applicant’s “behaviour was beyond reproach” and that he “stayed in touch with his wife and children.” Permission was again refused by the district court and penitentiary judge, however.   In a letter of 17 January 1995 the applicant asked the President of Wrocław Regional Court ( Sąd Wojewódzki ) to explain in writing why he had not been allowed to attend, either alone or under police escort, his parents’ funerals. On 31   January 1995 the court’s legal secretary   advised him that his requests for leave had been rejected because he had been a recidivist posing a risk of absconding.   On 26 May 1995 the applicant was convicted and imprisoned for larceny. On 27 February 1996, he was released from prison.   The applicant alleged, in particular, that the refusal to allow him to attend his parents’ funerals was in breach of Article 8 (right to respect for family life).   The Court noted that the applicant had lost both his parents in a space of one month. Both applications for leave to attend the funerals were accompanied by the statements of prison officers supporting them; the second of which confirmed that the applicant’s behaviour in prison was beyond reproach.   The Court also considered that the reasons given by domestic authorities for rejecting the applications were not persuasive. Allowing the applicant to go on escorted leave would have addressed any concerns about the risk of the applicant absconding or of his being “a significant danger to society”. However, despite the fact that escorted leave was permitted under domestic law, the authorities apparently did not even consider it. In addition, the second application was rejected by the Penitentiary Judge a day after the funeral of the applicant’s father had taken place. Moreover, the Penitentiary Judge’s conclusion, that there was no case for allowing the applicant to go on compassionate leave, was not supported by the facts.   The Court further observed that the charges brought against the applicant appeared not to concern violent crime and that he was released as early as February 1996. He could not therefore be considered as a prisoner with no prospect of being released. The Court was   aware of the problems of a financial and logistical nature caused by escorted leave and the   shortage of police and prison officers. However, taking into account the seriousness of what was at stake, namely refusing an individual the right to attend his parents’ funerals, the Court considered that attendance could have been refused only if there had been compelling reasons and no alternative solution.   The Court concluded that refusing to give the applicant leave to attend his parents’ funerals was not “necessary in a democratic society”, did not correspond to a pressing social need and was not proportionate to the legitimate aims pursued. The Court therefore held, unanimously, that there had been a violation of Article 8 and awarded the applicant EUR 1,500 for non-pecuniary damage, EUR 1,800 for costs and expenses, less EUR 630. (The judgment is in English only.)     (5)     Döry v. Sweden (no. 28394/95)                                                    No violation Article 6 § 1 (6)     Lundevall v. Sweden (no. 38629/97)                                                 Violation Article 6 § 1 (7)     Salomonsson v. Sweden (no. 38978/97)                                           Violation Article 6 § 1   Marta Döry, Rolf Lundevall and Hans   Salomonsson, all Swedish nationals, complained of the lack of an oral hearing in judicial proceeding concerning their social security benefits. They relied on Article 6 § 1 (right to a fair and public hearing before an independent tribunal). (All three judgments are in English only.)   The European Court of Human Rights recalled that unless there were exceptional circumstances that justified dispensing with a hearing, the right to a public hearing under Article 6 § 1 implied a right to an oral hearing at least before one instance.   The Court noted that no hearing was held at first instance since the applicants did not request the County Administrative Court to hold one. It also acknowledged that, in the interests of the proper administration of justice, it was normally more expedient that a hearing be held at first instance rather than only before the appellate court. Depending on the circumstances of the case, it might therefore be acceptable to reject a request for a hearing upon appeal, although no such hearing had been held at first instance.   The Court further recognised that disputes concerning benefits under social-security schemes were generally rather technical and their outcome usually depended on the doctors’ written medical opinions. Many such disputes might accordingly be better dealt with in writing than through oral argument. It was also understandable for the authorities to be concerned that the systematic holding of hearings could be an obstacle in dealing efficiently and economically with social-security cases.   In Döry v. Sweden the Court concluded that the dispute in the two cases concerning the applicant involved the correct interpretation of written medical evidence. The Court considered that the appellate court could adequately resolve this issue on the basis of the medical certificates in question and the applicant’s written submissions. It noted, in this connection, that the applicant, in the decisions rejecting her requests for oral hearings, was invited by the appellate court to submit final observations in writing. The Court further took into account that the applicant did not request the Administrative Court of Appeal to call any witnesses and did not rely on any other oral evidence. In fact, she did not state any reasons for her requests that the appellate court hold hearings in the cases. Finding that there were exceptional circumstances which justified dispensing with a hearing in the applicant’s cases, the Court held, unanimously, that there had been no violation of Article 6 § 1.   In Lundevall v. Sweden the Court noted that the main issue in the case was whether the applicant’s need of assistance and his additional costs attained the level required for a disability allowance.   The outcome depended on an assessment of which needs and costs could be considered as deriving from the applicant’s speech handicap and an estimation of the total amount of the various items. In requesting an oral hearing, the applicant stated, among other things, that he wished to put questions to the Board and that, in assessing his condition, the appellate court would benefit from having met him in person. It therefore appeared that an oral hearing could have provided information of relevance to the determination of the case.   The Court also noted that the Administrative Court of Appeal gave judgment against the applicant whereas the County Administrative Court and a minority in the Administrative Court of Appeal found in his favour on the issue of whether his needs and costs were such that he was eligible for a disability allowance.     The Court did not therefore find that there were exceptional circumstances which justified dispensing with a hearing although, having expressly requested an oral hearing in the Administrative Court of Appeal, the applicant was entitled to such a hearing. The Court held, unanimously, that the refusal by the Administrative Court of Appeal to hold an oral hearing amounted to a violation of Article 6 § 1. The applicant was awarded EUR 5,000 for costs and expenses.   In Salomonsson v. Sweden     the Court noted that the main issue in the case was whether the applicant’s extra costs attained the level required for a disability allowance. The doctors giving their opinion in the case did not agree about the applicant’s consumption of fluids. In requesting an oral hearing, the applicant stated that he wished to be heard about, among other things, the costs of his consumption of fluids. It therefore appeared that an oral hearing could have provided information of relevance to the determination of the case.   The Court also observed that the Administrative Court of Appeal found against the applicant whereas the County Administrative Court had given judgment in the applicant’s favour, having found that the medical evidence was inconclusive and that, even according to the Office’s calculation, the applicant’s extra costs were close to the level required for entitlement to a disability allowance.     The Court could not therefore find any exceptional circumstances which justified dispensing with a hearing. And, having expressly requested an oral hearing in the Administrative Court of Appeal, the applicant was entitled to such a hearing. The European Court of Human Rights held, unanimously, that the administrative court’s refusal amounted to a violation of Article 6 § 1. The applicant was awarded EUR 5,000 for costs and expenses.       (8)     Baková v. Slovakia (no. 47227/99)                                                    Violation Article 6 § 1 Mária Baková is a Slovakian national. The case concerns her claim for the restitution of a plot of land which had been expropriated from her in 1967.   On 15 September 1992 Košice-mesto Land Office ( Pozemkový úrad ) granted her claim, as the land had never served the purpose for which it had been expropriated within the meaning of Section 6 (1) (m) of the 1991 Land Ownership Act. The educational institution in possession of the land challenged the decision, which was quashed. The case was subsequently dismissed by Košice 2 District Office on the ground that the plot served the original purpose of its expropriation and that the applicant had received compensation for it.   On 10 March 1998 the applicant requested a judicial review of this decision.     On 12 June 1998 Košice Regional Court upheld the District Office’s decision, without holding an oral hearing. The court found that the plot in question served the purpose of its expropriation since a social institution used it as a playground for handicapped children.   The applicant alleged that her right to a public hearing before a tribunal was violated in proceedings concerning her claim for restitution of property.   The Court considered that, taking into account what was at stake for the applicant, Article 6 § 1 required an oral hearing before an independent tribunal. Košice 2 District Office was not an independent tribunal, within the meaning of Article 6 § 1 of the Convention, since it had been charged with carrying out local State administration under the control of the Government, and the appointment of its head was controlled by the executive. And Košice Regional Court, which was an independent tribunal, refused the applicant’s request to hold a hearing with reference to Article 250f of the Code of Civil Procedure, which allowed the courts to deliver a judgment without prior oral hearing in simple cases, in particular when there was no doubt as to whether the administrative authority established the facts correctly, and the point at issue was a question of law.   The Court therefore held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair and pubic hearing before an independent and impartial tribunal) and awarded the applicant EUR 1,000 for non-pecuniary damage and EUR 230 for costs and expenses. (The judgment is in English only.)   *** 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: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (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.