CEDH · PRESS;GENERAL;ENG — 3 avril 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 } .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 } .sE66965E4 { width:345.57pt; 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 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s76CF415B { page-break-before:always; clear:both } .sDB64876 { width:131.48pt; display:inline-block } .s8CBE74DD { width:64.77pt; display:inline-block } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sFE379883 { width:60.13pt; display:inline-block } .s78255940 { width:8.55pt; display:inline-block } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .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 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     179   3.4.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Bulgaria, Greece, Italy, Poland and Portugal   The European Court of Human Rights has today notified in writing the following 12 Chamber judgments, of which only Guerrera and Fusco v. Italy is final. [1]   Section 1   (1)     Klamecki v. Poland (no. 2) (application no. 31583/96) Violations Article 5 §§ 3 and 4   Violations Article 8 The applicant, Mr Ryszard Klamecki, is a Polish national, born in 1948 and living in Wrocław.   On 22 November 1995 the District Prosecutor charged him with fraud and detained him on remand. Mr Klamecki lodged numerous applications for his release but his detention was prolonged several times. On 30 September 1996 he was indicted on charges of aggravated fraud, appropriation of public property, receiving stolen goods, making a false declaration and forgery. The trial began on 10 April 1997. Mr Klamecki lodged numerous further unsuccessful applications for release. For a year he was not allowed any contact whatsoever with his wife. His correspondence with her was censored, as was all his other correspondence, including with the Secretariat of the Commission of Human Rights. On 23   February 1998 the court decided to re-start the trial from the beginning. Mr Klamecki was released on 9 March 1998 pending trial. On 16 December 1999 he was convicted and sentenced to three years’ imprisonment and a fine.   Mr Klamecki complained of a breach of Article 5 § 3 (right to be brought promptly before a judge) of the European Convention on Human Rights in that his detention on remand had been excessively long and had been ordered by an investigating prosecutor rather than a judge or other officer authorised by law to exercise judicial power. He complained, further, that the proceedings regarding the lawfulness of his detention on remand had not been adversarial, contrary to Article 5 § 4 (right to have lawfulness of detention decided speedily by a court); that his contact with his wife had been drastically restricted in breach of Article 8 (right to respect for family life); and that his correspondence had been censored in breach of Article 8 and Article 34 (right of individual petition).   The European Court of Human Rights reiterated that, under Polish law as in force at the material time, a prosecutor did not offer the guarantees of independence and impartiality required by Article 5 § 3 of the Convention because the prosecution authorities not only belonged to the executive branch of the State but also performed both investigative and prosecution functions in criminal proceedings and were a party to such proceedings. The applicant’s right to be brought before a judge or other officer authorised by law to exercise judicial functions had not therefore been respected. The reasons given for the applicant’s detention on remand were not sufficient or relevant and could not justify the period of two years, three months and 16 days during which he had remained in detention on remand. The Court also found that the procedure for reviewing the lawfulness of the applicant’s detention had been inherently non-adversarial.   The Court reiterated that routine interference with a detainee’s correspondence could not be considered as being imposed in accordance with the law or in compliance with the other requirements under Article 8. The restrictions on the applicant’s contact with his wife had been in accordance with the law and had pursued the legitimate aim of preventing disorder and crime, but had gone beyond what was necessary in a democratic society in the pursuit of that aim. The authorities had failed to strike a fair balance between the need to secure the process of obtaining evidence and the applicant’s right to respect for his family life.   The Court accordingly held unanimously that there had been a violation of Article 5 § 3 of the European Convention on Human Rights under two heads; a violation of Article 5 § 4; and a violation of Article 8 under two heads. It awarded the applicant 13,000 euros (EUR) for non-pecuniary damage and EUR 5,500 for costs and expenses. The Court held that no separate issue arose under Article 34. (The judgment is available only in English.)   The applicants in the following seven Italian cases complained about their prolonged inability - through lack of police assistance - to recover possession of their flats 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). In each case the Court held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. It awarded the applicants the following amounts, in euros (EUR), for any non-pecuniary damage, pecuniary damage, costs and expenses . (All judgments are available only in English.)     Pecuniary damage Non-pecuniary damage Costs and expenses (2)     C. Spa v. Italy (no. 34999/97)   EUR 23,000 EUR 7,000 (3)     Fegatelli v. Italy (no. 39735/98) EUR 734.42 EUR 10,000 EUR 2,000 (4)     Del Beato v. Italy (no. 41427/98) EUR 9,000 EUR 6,000 EUR 2,000 (5)     L.M. v. Italy (no. 41610/98) EUR 15,500 EUR 3,000 EUR 2,000 (6)     Malescia v. Italy (no. 42343/98) EUR 10,000 EUR 3,000 EUR 500 (7)     G.G. v. Italy (no. 43580/98) EUR 1,200 EUR 5,000 EUR 2,000 (8)     Capurso v. Italy (no. 45006/98) EUR 28,000 EUR 10,000 EUR 500         (9)     Kitov v. Bulgaria (no. 37104/97)   Violation Article 6 § 1 The applicant, Nikolai Kitov, is a Bulgarian national, born in 1956 and living in Samokov. He was mayor of Samokov between 1991 and 1994.   Criminal proceedings were instituted against him on 27 May 1993 for abuse of office, false certification in an official document and use of offensive language. On 17 May 1996 the District Court convicted Mr Kitov on the false certification charges and acquitted him on the others. He was given a suspended prison sentence of one year and three months. Both he and the prosecutor appealed. In respect of the false certification charges the proceedings ended on 28 February 1997 when the Supreme Court of Cassation upheld Mr Kitov’s conviction. The other charges were referred back to the investigating authorities. Various delays occurred in the proceedings before the prosecutor drew up a fresh indictment on 137 counts of abuse of office. The District Court held an initial hearing on 21 February 2002 and the case was adjourned to 22 April 2002.   Another set of criminal proceedings was instituted against Mr Kitov on 27 March 1995 for unlawfully ordering restitution to a private person of property acquired by the State in 1961 for the needs of the local post office. The post office brought a civil action against the individual in question claiming the property back. The proceedings remained dormant from November 1995 until August 1997, when the prosecutor sent the file back to the investigator asking him to verify the outcome of the civil dispute. On 15 October 1999 the prosecutor discontinued the proceedings.   Mr Kitov complained, under Article 6 § 1 (right to a fair trial within a reasonable time) of the European Convention on Human Rights, that the criminal proceedings against him were excessively lengthy.   The first proceedings had lasted nearly nine years and were still pending in respect of some of the charges. The Court accepted that they had been factually and legally complex. Their overall length had been mainly due to the fact that in 1997 they had been referred back to the investigating authorities on the basis that there had been breaches of procedure. It had not been shown that it had been necessary to go back to such an early stage in the proceedings. In so far as domestic law might have required them to be restarted, the authorities had to secure the enjoyment of the right of every accused person to a trial within a reasonable time through all appropriate means, including change of practice or legislative amendments if necessary. The Government had also failed to justify the delay incurred in the second proceedings because it had not shown that the outcome of the civil dispute had been decisive for determining the applicant’s criminal responsibility.   The Court held unanimously that there had been a violation of Article 6 § 1 of the European Convention on Human Rights and awarded the applicant 3,000 euros (EUR) for non-pecuniary damage. (The judgment is available only in English.)   (10)     Guerrera and Fusco v. Italy (no. 40601/98)   Violation Article 6 § 1 No violation Article 1 of Protocol No. 1 Michela Guerrera and Pellegrino Fusco are Italian nationals who were born in 1931 and 1927 respectively and live in Morcone.   On 5 April 1982 the applicants signed an agreement with the Morcone Town Council for the transfer ( cessione volontaria ) of a plot of land they owned in the town. In accordance with Law no.   385 of 1980, the agreement formalised the expropriation of the land. The applicants received a down payment from the authorities, calculated according to the criteria for awarding compensation in respect of agricultural land, with the proviso that the final amount of compensation would be assessed once a law laying down the criteria for awarding compensation in respect of building land was enacted.   After Law no. 385 of 1980 had been declared unconstitutional on the ground that it made the award of compensation subject to the enactment of a future law, the applicants applied to the Benevento District Court on 9 July 1986 for the remainder of the compensation due for the expropriation. In a judgment of 20 February 1989 the District Court held that the land should be treated as building land and ordered the authorities to pay the applicants additional compensation. That judgment was upheld by the Naples Court of Appeal, which ordered the town council – which in the meantime had been declared insolvent ( stato di dissesto ) – to pay compensation to the applicants, calculated according to the criteria set out in Law no. 359 of 1992.   In October 2002 the applicants informed the European Court of Human Rights that they had reached a settlement with the Morcone Town Council in December 1996, under which they had received more than 140,000,000 Italian lire (approximately 73,000 euros) in instalments paid in October 1997 and May 2000 to settle all their claims.   Relying on Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights, the applicants complained of the length of the compensation proceedings. They further complained under Article 1 of Protocol No. 1 (protection of property) of an infringement of their right to the peaceful enjoyment of their possessions on account of the amount of compensation awarded by the domestic courts for the expropriation.   The Court reiterated that a decision or measure favourable to an applicant was not in principle sufficient to deprive him of his status as a “victim” unless the national authorities had acknowledged, and then afforded redress for, the breach of the Convention. In the present case the settlement reached by the applicants had not included any compensation for the length of the proceedings. The Court observed that the proceedings, which had begun on 9 July 1986 and ended on 5 May 2000, had lasted more than 13 years and 9 months for two levels of jurisdiction, a period that did not satisfy the requirement of a reasonable time. It therefore held unanimously that there had been a violation of Article 6 § 1 of the Convention.   The Court further observed that it was not disputed that the expropriation in issue had amounted to interference with the applicants’ right of property; the interference had been provided for by law and had pursued a legitimate aim in the public interest. As to whether the interference had been justified, the Court noted that the settlement reached by the applicants had had the effect of largely satisfying their claims under Article 1 of Protocol No. 1 to the Convention. Furthermore, they had not been under any duress when they had waived the possibility of obtaining a higher amount of compensation. The Court accordingly held unanimously that there had been no violation of Article 1 of Protocol No. 1.   By way of just satisfaction, the Court awarded each applicant 15,000 euros (EUR) for non-pecuniary damage and EUR 1,250 for costs and expenses. (The judgment is available only in French.)   (11)     Anagnostopoulos v. Greece (no. 54589/00)   Violation Article 6 § 1 Dionysios Anagnostopoulos is an American national who was born in 1945 and lives in Athens.   In 1991 the National Bank of Greece informed the applicant that a cheque for 8,000,000 Greek drachmas (GRD) that had been paid into the account of the limited company he represented was a forgery. As the cheque was neither returned nor paid to him – the bank claimed that it had been lost – the applicant brought proceedings against the bank. The bank lodged a criminal complaint against the applicant for tendering forged documents with intent to defraud; during the investigation the applicant noticed on inspecting the file that certain documents were forged, including the cheque in question.   On 10 January 1994 the applicant lodged a criminal complaint against certain employees of the bank alleging forgery and tendering forged documents, applied to join the proceedings as a civil party and sought GRD 15,000 for non-pecuniary damage. The accused were summoned by the investigating judge in 1998. On 21 December 1998 the Indictment Division of the Athens Criminal Court ruled that prosecution of the offences allegedly committed by the bank employees in June 1993 was time-barred. That decision was upheld by the Indictment Division of the Athens Court of Appeal on 19 October 1999.   Relying on Article 6 § 1 (right to a fair hearing), the applicant submitted that because of the judicial authorities’ conduct, the accused had not been tried as a result of the time bar.   The European Court of Human Rights examined the complaint from the standpoint of the concept of access to a court. It agreed with the Government that the applicant could also have brought proceedings in the civil courts to obtain compensation for the damage sustained, in which case no problem would have arisen as regards access to a court.   However, the Court attached particular weight to the following circumstances. The alleged offences had taken place in June 1993. The accused had been summoned four years after the complaint had been lodged and five years after the offence, and as a result the proceedings had been time-barred. Furthermore, a new law passed in 1996 had downgraded the offences from serious crimes to lesser indictable offences, thereby reducing the limitation period for prosecution. Lastly, the applicant had made a compensation claim for GRD 15,000, an amount which, under Article 65 of the Code of Criminal Procedure, the criminal courts were required to examine in all circumstances without having to refer the matter to the civil courts. In that connection, the Court considered that where the domestic legal system provided litigants with a remedy such as the possibility of lodging a criminal complaint and civil-party application, the State was under an obligation to ensure that they enjoyed the fundamental guarantees laid down in Article 6.   In the present case, the delay with which the relevant authorities had examined the case had caused the prosecution of the offences to become time-barred and, consequently, made it impossible for the applicant to have his compensation claim determined. In the Court’s view, a litigant could not be required to wait for his claim to be time-barred through the fault of the judicial authorities before bringing fresh proceedings in the civil courts for the award of the token sum he had claimed in the criminal courts. The Court accordingly held by five votes to two that there had been a violation of Article 6 § 1 and that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. (The judgment is available only in French.) Section 3   (12)     Sousa Marinho and Marinho Meireles Pinto v. Portugal (no. 50775/99)   Violation Article 6 § 1 The applicants, Emília de Sousa Marinho, a Portuguese national born in 1924, and her daughter Maria de Fátima Marinho Meireles Pinto, a Brazilian national born in 1952, both live in Amarante (Portugal).   On 20 December 1992 a fight broke out between the applicants and another person. All three were prosecuted. On 1 February 1993 the applicants sought leave to intervene in the proceedings as assistentes (assistants to the prosecuting authority). Following the investigation, the third person alone was committed for trial. He was found guilty and on 27   January 1999 the Oporto Court of Appeal sentenced him to 14 months’ imprisonment, suspended, and ordered him to pay damages to the applicants. Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), the applicants complained of the length of the criminal proceedings to which they had been parties.   The European Court of Human Rights observed that the proceedings, which had begun on 1   February 1993, when the applicants had sought leave to intervene as assistentes , and had ended with the Oporto Court of Appeal’s judgment of 27 January 1999, had lasted approximately six years. Noting several delays that were attributable to the relevant authorities, the Court held unanimously that there had been a violation of Article 6 § 1 and awarded the applicants 3,000 euros (EUR) each for non-pecuniary damage and EUR 1,570 jointly 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)   Joanna Reynell (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.