CEDH · PRESS;GENERAL;ENG — 23 janvier 2003

.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 } .s17ADF5D0 { width:18.08pt; display:inline-block } .s1CDC23B7 { width:231.58pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sC2130717 { width:133.05pt; display:inline-block } .sE9F03D28 { width:105.43pt; 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     032   23.1.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Austria, France and Greece   The European Court of Human Rights has today notified in writing the following four Chamber judgments, of which only the friendly settlement is final: [1]   Section 1   (1)     Kienast v. Austria (application no. 23379/94)   No violation Articles 6 and 13     No violation Article 1 of Protocol No. 1 Franz Kienast was born in 1943 and lives in Gross Gerungs (Austria).   He owns land in Loipersdorf (Styria), registered under file No. 154 of the Loipersdorf Land Register ( Grundbuch ). Before 23 September 1992 it included parcel No. 772/1 of 4,231 square metres marked as garden ( Garten ) and, in the middle of it, parcel No. 66/2 of 401 square metres, marked as a building area ( Baufläche ).   On 1 December 1989 the applicant refused to give his consent to the joining of these two parcels of land in a new border register ( Grenzkataster ) for Loipersdorf. On 23 September 1992 the parcels were nonetheless joined in the land register. The applicant appealed unsuccessfully.   He lodged a further appeal on points of law ( Revisionsrekurs ), submitting, among other things, that the decision violated his right to property in that it was impossible to divide and sell separately the former parcels, because parcel No. 66/2 did not meet the required minimum surface area necessary for creating a separate parcel. This, a further appeal and various complaints were all rejected.   The applicant alleged that the joining of his two parcels of land infringed his property rights and that he did not have a fair hearing before an independent and impartial tribunal or an effective remedy. He relied on Article 1 of Protocol No. 1 (protection of property), Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy) of the European Convention on Human Rights.   The European Court of Human Rights observed that parcel No. 66/2 was completely surrounded by parcel No. 772/1 and that there were two buildings on parcel No. 772/1, one reaching into parcel No. 66/2. It seemed that, when these buildings were erected, no distinction had been made between the two parcels. Given that one of the buildings was situated on both parcels, it appeared quite artificial to maintain that they could be used in a completely independent way. It was true that the parties had not ruled out that in theory the two parcels could be separated again. The Supreme Court, however, in its judgment of 29 June 1993, had pointed out that such a measure might not be possible in view of their size. Overall, the Court was not persuaded that there was an arguably genuine and serious issue to be determined in the proceedings.   Finding that the dispute between the applicant and the Surveyor’s Office was not a genuine and serious one, as it concerned neither the existence of a civil right - the applicant’s position as owner of the land never having been called into question - nor the scope and manner of its exercise, the Court noted that Article 6 § 1 did not apply to the proceedings and held, unanimously, that there had been no violation of Article 6 § 1.   Concerning Article 1 of Protocol No. 1, the Court observed that the applicant remained the owner of the parcels of land and that he could use them in the same way as before. Regarding the alleged impossibility of disposing of the parcels separately, the Court had already found that this was not so much a consequence of the decision to join the parcels, so much as their location and the manner in which they had been used in the past. Accordingly, the Court held, unanimously, that there had been no breach of Article 1 of Protocol No. 1.   Finding that the applicant had no arguable claim in respect of a violation of the Convention, the Court further held, unanimously, that there had been no violation of Article 13. (The judgment is available only in English.)   (2)     Richen and Gaucher v. France (nos 31520/96 and 34359/97) Violation Article 6 § 1 The applicants, François Richen and Christian Gaucher, are French nationals, who were born in 1935 and 1926 respectively and live in Saint-Nazaire and Sencenac Puy de Fourches.   The applicants were both sentenced to a fine and temporarily disqualified from driving after being convicted of contravening the Road Traffic Code. After unsuccessfully appealing against their convictions, they lodged an appeal on points of law. They each provided their lawyers with a special authority to act, by which the lawyers sought leave from the President of the Criminal Division to consult their respective clients’ files, and in particular the advocate-general’s submissions (to which they wished to reply). They were told that only members of the Conseil d’État and Court of Cassation Bar were empowered to represent and assist parties before the Court of Cassation. Mr Richen’s appeal was dismissed on 20   December 1995 and Mr Gaucher’s on 14 May 1996.   Relying on Article 6 § 1 (right to a fair trial), the applicants submitted that they had been denied an adversarial hearing before the Criminal Division of the Court of Cassation and that the rights of the defence had not been respected. They alleged that they and their lawyers had been placed in an unfavourable position compared to appellants represented by a member of the Conseil d’Etat and Court of Cassation Bar.   With respect to the time-limit for lodging submissions with the Court of Cassation, the European Court of Human Rights noted that the applicants’ lawyer had lodged the submissions within the statutory time-limit without requesting an extension of time. The applicants had not been shown that the time allowed had been insufficient to enable them to present their grounds of appeal properly. In addition, the Court noted that the President of the Criminal Division of the Court of Cassation granted extensions of time virtually systematically in appeals concerning road-traffic offences where the appellant had yet to receive a copy of the decision appealed against. Consequently, although the applicants had not been allowed as much time as appellants who were represented by a member of the Conseil d’État and Court of Cassation Bar, the Court considered that the time-limit imposed on them did not infringe the provisions of Article 6 § 1 of Convention.   With regard to the question whether the applicants should have been served with notice to attend the hearing, the Court noted that they had appealed to the Court of Cassation after an examination of their arguments by the courts of first instance and appeal. Those courts had held hearings at which the applicants or their lawyer had been present and made representations, in accordance with Article 6 of the Convention. As to the fact that the applicants had not been permitted to make oral representations at the hearing, the Court reiterated that hearings before the Court of Cassation were of a technical nature and concerned only points of law. The special nature of proceedings before the Court of Cassation could justify specialist lawyers being reserved a monopoly on making oral representations and the applicants had not thereby been denied a reasonable opportunity to present their cases without being at a substantial disadvantage. Consequently, the Court considered that the fact that the applicants had not been given an opportunity to plead their cases orally, either in person or through a member of the ordinary bar, had not infringed their right to a fair trial within the meaning of Article 6 of the Convention.   With regard to the fact that the applicants’ complaint that they had not received a copy of the Advocate General’s submissions and had had no opportunity to reply to them in writing, the Court noted that the applicants were unable to ascertain the tenor of those submissions before the hearing or to reply thereto by a note to the Court of Cassation in deliberations, even though they were entitled to lodge signed submissions before the hearing. While it was true that the applicants had not applied for legal aid to enable them to be represented by specialist lawyers, that did not mean that they had waived the right to the guarantees of adversarial process. The Court found that the applicants’ appeal had not been examined fairly after adversarial process. Accordingly, it held unanimously that there had been a violation of Article 6 § 1 on that account and awarded each of the applicants 1,200 euros (EUR) for costs and expenses. (The judgment is available only in French.)   (3)     Tsirikakis v. Greece (no. 46355/99)   Just satisfaction In its principal judgment of 17 January 2002 the European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 and that the question of the application of Article 41 (just satisfaction) was not ready for decision.   The applicants, Anastasios and Georgios Tsirikakis, are both Greek nationals. The case concerned the expropriation of their land to build a sewage treatment plant. They claimed that the entirety of their 60,000 m² island - rather than the 10,366 m² in the expropriation application - was used to construct, among other things, sewage works and that large quantities of sludge were produced by the plant. They complained about the length of the proceedings concerning their right to receive compensation, which has lasted more than 13 years and three months. They also complained of a violation of their right to respect for their property. They relied on Article 6 § 1 and Article 1 of Protocol No. 1 (protection of property).   In today’s Article 41 judgment the Court decided unanimously to award the applicant EUR 16,795 for pecuniary damage, EUR 35,000 for non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available only in French.)   (4)     Papazafiris v. Greece (no. 55753/00)   Violation Article 6 § 1 The applicant, Athanasios Papazafiris, is a Greek national, who was born in 1968 and lives in Athens.   On 28 February 1992 criminal proceedings were brought against the applicant for insubordination and insulting the armed forces. He was acquitted at first instance, but given a suspended prison sentence on appeal. The Court of Cassation set the judgment aside and remitted the case to the Court of Appeal, which discontinued the proceedings against the applicant on 1 October 1999 on the ground that the time-limit for prosecuting the offence had expired.   Relying on Article 6 § 1 (right to a fair trial within a reasonable time), the applicant complained of the excessive length of the criminal proceedings against him (seven years and seven months).   The European Court of Human Rights noted that the proceedings complained of had taken seven years and seven months before four levels of jurisdiction. It considered that period to be excessive and incompatible with the “reasonable-time” requirement. Consequently, it held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR   4,500 for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)   ***   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.