CEDH · PRESS;GENERAL;ENG — 12 juin 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 } .s66324ECF { width:76.76pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s2AD7A6D2 { width:93.47pt; display:inline-block } .s949E9E2C { width:144.14pt; display:inline-block } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s35A86883 { width:131.46pt; display:inline-block } .s6D47E598 { width:106.12pt; display:inline-block } .s4BAE41EE { font-family:Arial; font-size:11pt } .s4B2B59CE { width:59.49pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC4EA0767 { width:28.81pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .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     314   12.6.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Austria, France, Germany and the United Kingdom   The European Court of Human Rights has today notified in writing the following seven Chamber judgments, none of which is final. [1]   (1)     Royer v. Austria (application no. 42484/98)   Violation Article 6 § 1   Excessive length of criminal proceedings   Gerhart Royer, an Austrian national, was born in 1932 and lives in Wels (Austria). On 4   April 1984 he was arrested on suspicion of serial aggravated fraud dating from 1   January 1979. On 6 July 1987 he and three others, one of whom was a former judge at the Wels Regional Court, were charged with several counts of aggravated fraud and two other offences. On 5 September 1991 Mr   Royer was found guilty and sentenced to 18 months’ imprisonment. His conviction and that of the former judge were set aside on 26 November 1992 and the case was referred back to the Regional Court. Mr Royer was convicted again on 10 February 1998 and sentenced to one year’s imprisonment. The judgment was not served on his lawyer until 8 March 2001.   Mr Royer complained that the criminal proceedings had not been concluded within a reasonable time as required by Article 6 § 1 of the European Convention of Human Rights.   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 of the Convention because the overall length of the proceedings (almost 17 years) had been excessive. It awarded the applicant 12,000 euros (EUR) for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in English.)   (2)     Gutfreund v. France (no. 45681/99)   Article 6 § 1 inapplicable   Alleged impartiality of judge who had refused to grant legal aid   Alain Gutfreund is a French national who was born in 1963 and lives at Dettwiller (France). He was prosecuted in the police court for assaulting his wife. His application for legal aid to defend himself was refused.   He complained under Article 6 § 1 (right to an independent and impartial tribunal) of bias on the part of the judge who decided his legal-aid application.   The Court noted that the applicant’s complaint was confined to the procedure for applying for legal aid. That procedure did not concern the determination of a criminal charge against him, or of his civil rights and obligations, within the meaning of Article 6 § 1. The Court accordingly held unanimously that that provision was inapplicable.   (3)     Lallement v. France (no. 46044/99)   Just satisfaction   Just satisfaction awarded for loss of means of earning living   The applicant, Henri Lallement, is a French farmer who was born in 1954 and lives at Gué-d’Hossus (France). Part of his farmland was expropriated in 1993.   In a judgment of 11 April 2002, a Chamber of the Court ruled that the expropriation had deprived him of his “means of earning a living”. Noting that that head of loss had not been covered by the compensation paid to the applicant, the Court found a violation of Article 1 of Protocol No. 1 to the Convention (protection of property), as he had had to bear an “individual and excessive burden”. It reserved the question of the assessment of pecuniary damage.   In its judgment dealing with the question of just satisfaction, the Court, by five votes to two, awarded the applicant EUR 150,000 for pecuniary damage. (The judgment is available only in French.) No violation Article 5 § 1 (e) (4)     Herz v. Germany (no. 44672/98)   Violation Article 5 § 4   Review of lawfulness of detention in psychiatric hospital   The applicant, Eberhard Herz, is a German national who was born in 1944 and lives in Freiburg im Breisgau.   Between March 1995 and December 1997 he was compulsorily detained in a psychiatric hospital on three occasions. On the first, a psychiatric report was issued which concluded that he was suffering from paranoid psychosis and was dangerous. The applicant was subsequently examined by a number of specialists, some of whom considered confinement necessary, while others took the view that he was not suffering from any mental disorder.   The applicant was readmitted to psychiatric hospital in October 1996 following a violent dispute with his former partner’s father. On the basis of a diagnosis received over the telephone, the Ansbach Guardianship Court upheld the order for his provisional detention. The applicant escaped from the hospital on 18 November 1996. He made an unsuccessful appeal against the detention order.   The applicant complained, under Article 5 §§ 1 (e) and 4 (right to liberty and security) of the Convention, that his detention on the second occasion was unlawful, as he had not been found to be suffering from any mental disorder, and that he had been denied access to a court to have the lawfulness of his detention decided. He further complained that the proceedings in the guardianship court were unfair, contrary to Article 6 § 1 (right to a fair trial), and alleged that the domestic courts’ refusal to examine his appeals had infringed Articles 6 § 1 and 13 (right to an effective remedy).   The Court noted that the only basis for the guardianship court’s order for the applicant’s detention was a diagnosis obtained over the telephone. However, it considered that the guardianship court was not at fault in failing to obtain psychiatric reports or hear the applicant, as it had been under a duty to take a decision rapidly.   As to whether detention was justified, the Court considered that it was not easy to reach a final conclusion on the applicant’s state of health, as a number of conflicting psychiatric opinions had been given. It was necessary to have regard to the context in which the order for the applicant’s detention had been made. The Court stressed that it had been a temporary measure aimed at establishing whether the applicant was suffering from a mental disorder and had been made on the basis of medical advice. In those circumstances, it held unanimously that there had been no violation of Article 5 § 1 (e). In the light of that finding, it considered that there was no need for any separate examination of the complaint of a violation of Article 6 § 1.   As regards the applicant’s complaint that he had been unable to challenge the lawfulness of his detention, the Court noted that the domestic courts had dismissed his applications on the ground that in the interim the detention orders had expired and the applicant had escaped from hospital. It considered that, particularly in view of the gravity of such measures – be they only temporary – the mere fact that the detention order had expired could not deprive the applicant of the right to a review of the lawfulness of his detention. Accordingly, the Court held unanimously that there had been a violation of Article 5 § 4.   As to the complaint that the guardianship court had failed to decide the lawfulness of his detention speedily, the Court noted that it had in fact taken 11 days to decide that issue and that by then the applicant had absconded from the hospital. On the facts, the Court held unanimously that there had been no violation of Article 5 § 4 on that account. In the light of that finding, it held that no separate examination of the complaint of a violation of Article 6 §   1 and Article 13 of the Convention was necessary.   Under Article 41 (just satisfaction) the Court awarded the applicant EUR 3,500 for non-pecuniary damage and EUR 6,500 for costs and expenses. (The judgment is available only in French.)   (5)     Van Kück v. Germany (no. 35968/97)   Violation Article 6 § 1 Violation Article 8   Courts’ refusal to order reimbursement of top-up costs of transsexual’s gender re-assignment treatment   The applicant, Ms Van Kück, who lives in Berlin, was born male in 1948. She changed her first names to Carola Brenda in December 1991. The following year she sued a health-insurance company for reimbursement of the cost of hormone treatment and a declaration that the company was liable to reimburse 50% of the cost of gender re-assignment surgery. Her claim was rejected by the Regional Court on the ground that this could not reasonably be considered as necessary medical treatment: it had not been conclusively shown that it would relieve her condition and she should have tried extensive psychotherapy first. The Court of Appeal upheld that decision and added that Ms Van Kück was not entitled to reimbursement because she had caused the disease herself. In that respect it referred to the fact that she had started to take female hormones, without medical advice, only after discovering that as a man she was sterile. In the meantime Ms Van Kück underwent gender re-assignment surgery. Her subsequent appeal to the Constitutional Court was unsuccessful.   She complained, under Article 6 § 1 (right to a fair hearing) of the Convention, that the German court proceedings had been unfair. She also complained of a breach of Article 8 (right to respect for private life) and of Article 14 (prohibition of discrimination) combined with Articles 6 § 1 and 8.   In the Court’s view, the German courts should have requested further clarification from a medical expert. With regard to the Court of Appeal’s reference to the causes of the applicant’s condition, it could not be said that there was anything arbitrary or capricious in a decision to undergo gender re-assignment surgery and the applicant had in fact already undergone such surgery by the time the Court of Appeal gave its judgment. The proceedings, taken as a whole, had not satisfied the requirements of a fair hearing.   The central issue with regard to Ms Van Kück’s complaint under Article 8 was the courts’ application of the criteria for reimbursement of the medical costs of gender re-assignment surgery and not the legitimacy of such measures in general. Furthermore, what mattered was not the entitlement to reimbursement as such, but the impact of the court decisions on the applicant’s right to respect for her sexual self-determination. Without hearing further expert medical evidence, both the Regional Court and the Court of Appeal had questioned the medical necessity of gender re-assignment and the Court of Appeal had additionally, on the basis of general assumptions as to male and female behaviour, concluded that the applicant had deliberately caused her condition of transsexuality. Since gender identity was one of the most intimate aspects of a person’s private life, it appeared disproportionate to require Ms   Van Kück to prove the medical necessity of the treatment. No fair balance had been struck between the interests of the insurance company on the one hand and the interests of the individual on the other.   The Court held, by four votes to three, that there had been a violation of Article 6 § 1 and Article 8 and, unanimously, that no separate issue arose under Article 14. It awarded the applicant EUR   15,000 for non-pecuniary damage and EUR 2,500 for costs and expenses.   Violation Article 8 (6)     Chalkley v. the United Kingdom (no. 63831/00)   Violation Article 13   Tape-recorded evidence admitted in criminal trial   Tony Michael Chalkley, a British national, was born in 1961 and is currently in HM Prison Ashwell (Leicestershire). In March 1994 the police suspected him of planning a robbery. In order to install a listening device in his house, they decided to arrest him and his girlfriend in connection with another matter (credit-card fraud) and to remove them and their children from their home. The enquiries in connection with that offence had previously lapsed without either Mr Chalkley or his girlfriend being arrested or questioned. On 8 July 1994 they were arrested and taken to the police station. The police officers seized the key to their home and used it to enter the house and install the listening device. They also had a copy of the key cut to enable them to enter the house at a later date. Mr Chalkley and his girlfriend were released later that evening.   On the basis of conversations recorded between Mr Chalkley and his co-defendant, they were both arrested in September 1994 and charged with conspiracy to commit robbery and burglary. At their trial in October 1996 their lawyers applied to have the tape-recorded evidence excluded. When the judge ruled it admissible, Mr Chalkley and his co-defendant pleaded guilty and were sentenced to 10 years’ imprisonment. In early 2001 Mr Chalkley was released on parole.   Relying on Article 8 (right to respect for private life) of the Convention, he complained that the police had used a covert listening device to record conversations in his home.   The Court reiterated that at the relevant time there had been no statutory system to regulate the use of covert recording devices by the police. Accordingly, the interference had not been “in accordance with the law” as required by Article 8 § 2. It held unanimously that there had accordingly been a violation of Article 8. It held, further, that there had been a violation of Article 13 because Mr Chalkley had not had an effective remedy by which to pursue his complaint, and that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage he had sustained. The Court awarded him EUR   4,800 for costs and expenses. (The judgment is available only in English.)   (7)     Easterbrook v. the United Kingdom (no.   48015/99)   Violation Article 6 § 1   Minimum prison term determined by member of the executive   Ronald Easterbrook, a British national, was born in 1931 and is serving a term of life imprisonment at HM Prison Highdown (Surrey). On 23 November 1987 he and his accomplices held up a shop and then attempted to make their getaway with 10,400 pounds sterling. They were intercepted by the police, whereupon Mr   Easterbrook opened fire, wounding a police officer in the leg. The police officer fired back and one of Mr Easterbrook’s accomplices was killed. On 30 November 1988 Mr Easterbrook was convicted of robbery, malicious wounding, and possessing firearms and ammunition with intent to endanger life, and sentenced to life imprisonment. His appeals were unsuccessful.   The minimum period Mr Easterbrook was required to serve (the “tariff”) was not fixed by the trial judge in November 1988. On 5 February 1998 the Home Secretary fixed the tariff at 16 years after consulting the judiciary. Mr Easterbrook’s lawyers asked for the period to be reduced and requested an oral hearing before the Lord Chief Justice. On 13 August 1998 they were notified that the Lord Chief Justice had revised his opinion and was now recommending a tariff of 12-13 years, but that no oral hearing would be allowed. On 27   November 1998 the lawyers were informed that the Home Secretary had decided on a tariff of 12 and a half years, expiring in May 2000. The applicant’s requests for judicial review of that decision were dismissed. After he had served that period he became eligible for parole review procedures, but has stated that he will not participate in them.   Relying on Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) and Article 6 § 1 (right to a fair hearing) of the Convention, he complained that his tariff sentence had been fixed by the Home Secretary, rather than by a judge, after a long delay and without an oral hearing.   The Court held unanimously that there had been a violation of Article 6 § 1 because Mr   Easterbrook’s tariff had been fixed after an unreasonable delay and, moreover, had not been fixed by a court in a public hearing in which arguments could be put forward by both sides. The mere fact that the member of the executive who fixed the tariff had been guided by judicial opinion did not satisfy the fundamental principle relating to the separation of judicial and executive powers. No separate issue arose under Article 5 § 4. The Court awarded the applicant EUR   5,000 for non-pecuniary damage and EUR 5,800 for costs and expenses. (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:   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.