CEDH · PRESS;GENERAL;ENG — 18 février 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 } .sFFCBE8B2 { width:40.76pt; display:inline-block } .s19486280 { width:352.24pt; display:inline-block } .s1B186ACE { width:18.59pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .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     097   18.2.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Spain and Luxembourg   The European Court of Human Rights has today notified in writing the following two Chamber judgments, none of which is final. [1] (These judgments are in French only.)   Section 4   (1)     Schaal v. Luxembourg (application no. 51773/99)   Violation Article 6 § 1   Violation Article 8 Daniel Schaal is a Luxembourg national who was born in 1956 and lives in Mersch. He married R. in 1984, and they had a daughter, C., in 1986. In 1993 the applicant asked for a divorce.   After a complaint lodged by R., accusing him of sexually abusing their daughter, the applicant was charged on 11 February 1994 with rape by an ascendant and sexual assault with violence and threats. On 13 July 1994 the Diekirch District Court granted a divorce, fault being attributed to the applicant’s wife alone, awarded her custody of the child and stayed its decision on granting the applicant access.   During the criminal investigation psychological reports were drawn up on C. to determine the credibility of her statements; witnesses were also interviewed. On 4 April 2000 the applicant was acquitted by the Criminal Division of the Luxembourg District Court, which attached particular weight to the findings of the investigating officer to the effect that R.’s cohabitee had spoken to the child about sexual assaults, to the witness evidence of doctors whom R. had contacted in vain to obtain a medical certificate concerning the child and to the fact that, when asked at the trial whether her father had committed the acts he stood accused of, the child had said he had not.   On 8 November 2000 the applicant applied for visiting and staying access, and the Diekirch District Court made an order granting his application on 10 January 2001. R. refused to comply with the order and was fined 1,000 euros on 9 July 2002. She appealed.   Relying on Article 6 § 1 (right to a fair trial within a reasonable time) of the European Convention on Human Rights, the applicant complained of the length of the criminal proceedings against him. He further contended, on the basis of Article 8 (right to respect for private and family life), that the authorities’ refusal to grant him visiting and staying access until his innocence had been proved had infringed his right to respect for his family life.   The Court noted that the criminal proceedings had lasted more than six years for one level of jurisdiction. In its view, from the time the matter of visiting and/or staying rights had been adjourned, the courts had had a duty, under Article 6 § 1, to act with exceptional diligence to ensure that the proceedings were conducted speedily in view of the importance of what was at stake for the applicant. Finding that there had been periods of inactivity attributable to the authorities, the Court held unanimously that there had been a violation of Article 6 § 1 of the Convention.   Regarding the complaint of a breach of Article 8, the Court found that two periods had to be distinguished. With regard to the period between the judgment staying the proceedings and the judgment acquitting the applicant, the Court accepted that while waiting for the outcome of the criminal trial, the interests of the child justified suspending the applicant’s access rights and the interference with his right to respect for his family life. However, the interests of the child also justified allowing family bonds to develop once the measures were no longer necessary. Given the flaws in the proceedings, the Court held that the Luxembourg authorities had not taken all the necessary measures that could reasonably have been expected of them in order to rebuild the applicant’s family life with his young child. Accordingly, the Court held unanimously that there had been a breach of Article 8. With regard to the period after the applicant’s acquittal, the Court did not find any period of inactivity attributable to the domestic authorities and accordingly held that there had not been a breach of Article 8 in respect of that period.   Under the head of just satisfaction, the Court awarded the applicant 15,000 euros (EUR) for non-pecuniary damage and EUR 6,579 for costs and expenses.   (2)     Prado Bugallo v. Spain (no. 58496/00)           Violation Article 8   José Ramón Prado Bugallo is a Spanish national who was born in 1956 and lives in Cambados. As the head of a vast economic complex made up of a number of companies engaged in tobacco imports and exports, with registered offices in the Panama zone, Galicia and Antwerp, the applicant had a large network of business associates ( colaboradores ).   In connection with a judicial investigation concerning drug trafficking, Central Investigating Judge no. 5 ordered telephone tapping under Article 579 § 3 of the Code of Criminal Procedure of the lines of natural and legal persons suspected of belonging to a cocaine trafficking network run by the applicant. Following an exhaustive police investigation the applicant and a number of his associates were arrested in January 1991.   In a judgment of 26 June 1993 the Criminal Division of the Audiencia Nacional found the applicant guilty of drug trafficking, unauthorised currency transfers and forgery of public documents, sentenced him to 20 years and three months’ imprisonment and imposed fines. The court based its decision on the recordings of the intercepted calls.   In a judgment of 31 October 1994 the Supreme Court dismissed an appeal on points of law by the applicant. On the question of the legality of the telephone tapping, it said that in addition to the applicable legislation, which it described as “deficient”, the lower courts had taken into account the case-law of the Constitutional Court and the European Court of Human Rights. The applicant lodged an amparo appeal with the Constitutional Court. The appeal was dismissed on 20 December 1999 on the ground that the telephone tapping had complied with the requirements of judicial supervision, lawfulness and proportionality.   The applicant asserted that the interception of his telephone calls had infringed his right to respect for his private life, as guaranteed by Article 8 of the Convention.   The Court noted that Article 579 of the Code of Criminal Procedure, as amended by the Act of 25 May 1988, set out provisions for supervising telephone-tapping measures. It held that the safeguards introduced by the Act did not satisfy all the conditions required by the Court’s case-law for avoiding possible abuses. These concerned determining the nature of offences which might give rise to such an order; fixing limits on the duration of telephone tapping; and specifying the procedure for drawing up the summary reports containing intercepted conversations. The precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and the defence were also found to be inadequate.   The Court found that, despite the improvements made by the 1988 Act, telephone-tapping measures were still substantially flawed. Admittedly, those flaws had been largely remedied by the case-law of the domestic courts, in particular the Supreme Court. However, even supposing that those developments in the case-law were capable of formally remedying the deficiencies in the law, they could not be taken into account in the present case because they postdated the orders to tap the applicant’s telephone. Consequently, the Court held unanimously that there had been a violation of Article 8 of the Convention and awarded the applicant EUR 7,000 for costs and expenses.   ***   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.