CEDH · PRESS;GENERAL;ENG — 15 juillet 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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s3A000F32 { width:108pt; display:inline-block } .s73E9FC7D { width:453.6pt; display:inline-block } .sF9C0A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:12pt } .sEE1EDB13 { font-family:Arial; font-weight:normal; font-style:italic } .s526A9A9E { width:147.57pt; display:inline-block } .sA019E8EF { width:54.79pt; display:inline-block } .s94C36C9A { margin-top:0pt; margin-bottom:0pt; text-align:right; page-break-after:avoid; font-size:12pt } .sA92F684C { width:108.17pt; display:inline-block } .s729841D5 { width:145.5pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .sD98A450B { width:218.18pt; display:inline-block } .s4DC2D72 { width:212.84pt; 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     392   15.7.2003   Press release issued by the Registrar   Chamber judgments concerning Finland, France, Iceland, Luxembourg, Poland, Romania and San Marino   The European Court of Human Rights has today notified in writing the following nine Chamber judgments, of which only Niziuk v. Poland is final. [1]   (1)     The Fortum Corporation v. Finland (application no. 32559/96) Violation Article 6 § 1   Inability to comment on documents sent to Supreme Administrative Court   This application was originally brought by a company called Neste Oy. After merging with another company, it renamed itself Fortum Oil and Gas Oy and eventually became the Fortum Corporation. It is a multinational company specialising in the wholesale of petrochemical products. On 11 October 1993 the Competition Office brought proceedings before the Competition Council for an order requesting Neste to cease abusing its dominant position on the Finnish market for motor-engine fuel. It later requested the imposition of a fine on Neste. On 16 June 1994 the Competition Council found in favour of the Competition Office, but did not impose a fine. The parties appealed to the Supreme Administrative Court (“SAC”). It later transpired that the SAC had been in receipt of memoranda from the Competition Office that had not been communicated to Neste. On 30 November 1995 the SAC upheld the Competition Council’s decision in large part and concluded that Neste should have been fined. On 30 October 1996 the Competition Council fixed the fine at 2,000,000 Finnish marks (about 336,000 euros (EUR)).   The applicant company complained, under Article 6 §§ 1 and 3 (a) and (b) (right to a fair hearing) of the Convention, that its predecessor, Neste, had been denied a fair hearing in the proceedings before the Supreme Administrative Court because certain memoranda that had been submitted to that court had not been communicated to Neste for possible comments.   The European Court of Human Rights noted that at least one of the memoranda could have affected the outcome of the proceedings. Whatever the actual effect of the memoranda on the decision of the Supreme Administrative Court, however, the Court stressed that it should have given Neste an opportunity to comment on them before it decided the case. The Court concluded that the applicant company had been unable to participate properly in the proceedings and had thus been deprived of a fair hearing. It held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage and awarded the applicant company EUR   10,000 for costs and expenses. (The judgment is available only in English.)   Violation Article 6 § 1 (2)     Granata (n°   2) v. France (no. 51434/99)   Violation Article 13   Length of divorce proceedings and lack of an effective remedy   Giovanni Granata is an Italian national who was born in 1939 and lives in Aix-en-Provence.   He married in 1972 and he and his wife adopted four children. On 9 November 1990 Mrs   Granata applied for a judicial separation. In a decision of 19 March 1991 the family court judge noted that a reconciliation attempt had proved unsuccessful and authorised the parties to live apart. The applicant’s wife then applied to the Aix-en-Provence tribunal de grande instance for a decree of separation and Mr Granata filed a cross-petition for divorce. In a judgment of 21 September 1994 the tribunal de grande instance granted a divorce based on the fault of both parties and made orders concerning parental authority and access and residence arrangements. The Court of Appeal upheld that judgment on 27 March 1997. The proceedings ended with a judgment of 11 February 1999 in which the Court of Cassation dismissed an appeal on points of law by the applicant.   Relying on Article 6 § 1 (right to a hearing within a reasonable time) of the Convention, the applicant complained of the length of the divorce proceedings. He further complained under Article 13 (right to an effective remedy) that in French law there was no remedy available to him whereby he could complain of the excessive length of the proceedings.   The Court noted that the proceedings had lasted eight years and three months at three levels of jurisdiction. It considered that the case was not a particularly difficult one and noted that exchanges of pleadings between the parties had contributed to the protraction of the proceedings. As regards the conduct of the judicial authorities, the Court noted that although both parties had been warned to submit their pleadings no time-limits had been fixed for that purpose.   Moreover, periods of inactivity which could not be imputed to the applicant had not been justified by the Government. Having regard to the circumstances of the case and the overall length of the proceedings, the Court considered that the applicant’s case had not been heard within a reasonable time. It accordingly held unanimously that there had been a violation of Article 6 § 1 of the Convention.   As regards the complaint of a violation of Article 13 of the Convention, the Court observed that it had already had occasion to rule on that point in a similar case. Referring to its case-law, it noted that at the time when the application was lodged there was no effective remedy in French law whereby the applicant could have raised his complaint about the length of the proceedings. Consequently, the Court held unanimously that there had been a violation of Article 13 of the Convention.   Under Article 41 (just satisfaction) the Court awarded Mr Granata EUR 1,000 for non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.) Violation of Article 8   in the event of the enforcement of a deportation order (3)     Mokrani v. France (no. 52206/99)   Deportation order   Boubaker Mokrani is an Algerian national who was born in 1962 in Marseilles. At the time when he lodged his application he was living in Marseilles.   Mr Mokrani has lived in France since he was born and all his schooling took place there. His parents and his six brothers and sisters, five of whom have French nationality, also live in France. The applicant declared that for a very long time he had been in a stable relationship with A., a French national with whom he had had a child in 1999 and whom he had married in 2001.   On 9 July 1992 the applicant was sentenced to four years’ imprisonment, one of which was suspended, for heroin trafficking. In March 1995 the Minister of the Interior ordered his deportation. Appeals by the applicant against the order were dismissed. To date, the deportation order against the applicant has not been enforced.   The applicant complained that the deportation order against him interfered with his private and family life, in breach of Article 8 of the Convention.   The Court reiterated that excluding a person from a country in which his close family lived might constitute interference with his right to respect for his family life. In the present case the deportation order made against the applicant had been based on the provisions of the Order of 1945 relating to the conditions of entry and residence of aliens in France and had had the legitimate aims of “preventing disorder or crime”.   In order to assess whether the interference was “necessary in a democratic society”, the Court verified whether the deportation order had maintained a fair balance between the conflicting interests.   As regards the seriousness of the offences committed by Mr Mokrani, the Court noted that the deportation order had been based on his conviction in 1992 for drug offences, the drug in question being heroin. In that connection, the Court noted that this was a sphere in which it could readily understand that States might wish to act with great firmness against those who contributed to the spread of the evil. Moreover, the sentence imposed on Mr Mokrani attested to the seriousness of the offences concerned.   As to Mr Mokrani’s links with France, the Court noted that most of his social ties were there. Regarding his family situation, the Court noted that when the applicant commenced his relationship with A. the deportation order had already been issued, so that he could not have been unaware of the precariousness of his situation. However, the Court had to assess whether the applicant had a family life for the purposes of the Convention at the date when the measure complained of had become final, namely 15 January 1999, when the Conseil d’Etat dismissed his appeal, and at that time the relationship between A. and the applicant had been in existence for more than four years. The Court considered that the applicant could not be blamed for contesting the deportation order or held responsible for the length of the related proceedings. Having examined whether it was possible for Mr Mokrani and his wife to establish a family life in another country, the Court considered that this was unlikely on account of the lack of links with other countries and the nature of the offence, among other reasons.   Those factors, and especially the intensity of the applicant’s personal ties with France, were sufficient to enable the Court to rule that if the deportation order were to be enforced this would not be proportionate to the aims pursued. Therefore, in the event of enforcement of the order for Mr Mokrani’s deportation, there would be a violation of Article 8 of the Convention.   Under Article 41 (just satisfaction) the Court awarded the applicant EUR 2,500 for non-pecuniary damage and EUR 3,970 for costs and expenses. (The judgment is available only in French.)   (4)     Sigurþór Arnarsson v. Iceland (no. 44671/98)   Violation Article 6 § 1   Applicant convicted on appeal without oral evidence being heard from him or other witnesses   Sigurþór Arnarsson is an Icelandic national, born in 1971 and living in Iceland. On 13 May 1997 he got into a fight in a night club in Reykjavík following which the victim was taken to hospital and died the next day. On 15 July 1997 one of the men who had accompanied Mr   Arnarsson to the night club was charged with attacking the victim and Mr Arnarsson himself was charged with kicking the victim in the head causing a massive cerebral haemorrhage resulting in death. At the District Court trial evidence was heard from both defendants and 20 witnesses. The witness accounts of the incident diverged considerably. Mr   Arnarsson was acquitted on 19 September 1997. The prosecution appealed. The Supreme Court heard submissions from the prosecution and from Mr Arnarsson’s lawyer, but not from Mr   Arnarsson himself or from any witnesses. In a judgment of 22 May 1998 it convicted Mr   Arnarsson and sentenced him to two years and three months’ imprisonment.   Mr Arnarsson complained, under Article 6 § 1 (right to a fair trial) of the Convention, that the Supreme Court had based its decision to convict him on a reassessment of the oral evidence given before the lower court without hearing evidence from him or the other witnesses.   The Court observed that the fairness of the District Court proceedings had not been disputed. The issue to be determined was whether the Supreme Court’s omission to take oral statements from Mr Arnarsson and witnesses before overturning his acquittal was incompatible with his right to a fair and public hearing.   The issues to be determined by the Supreme Court had been predominantly factual and, given the contradictions and inconsistencies in the witness evidence, it could be assumed that they had been complex. Moreover, in deciding on sentence, it had not had the benefit of the prior assessment of the question by the lower court which had heard evidence from Mr   Arnarsson directly. Given what was at stake for him, the Court did not consider that the issues before the Supreme Court could have been properly examined without hearing evidence from Mr   Arnarsson in person and from certain other witnesses. It was clear from the relevant statutory provision that Mr Arnarsson could reasonably have expected the Supreme Court to summon him and other witnesses to give oral evidence if it were minded to overturn the acquittal on the basis of a different assessment of the evidence.   The Court accordingly held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant 8,000 euros (EUR) for non-pecuniary damage and EUR   13,500 for costs and expenses. (The judgment is available only in English.) Violation Article 6 (5)     Berlin v. Luxembourg (no. 44978/98)   No violation Article 8   Length of divorce proceedings and right to respect for family life   Alexandre Berlin is an American national who was born in 1935 and lives in Canada. In 1962 he married an American national in the United States. During their marriage, the couple lived in Luxembourg.   On 20 September 1983 the applicant’s wife issued divorce proceedings in Luxembourg District Court alleging desertion. On 21 November 1995 she filed a fresh petition alleging adultery. On 10 October 1997 the applicant brought divorce proceedings on the ground that they had been living apart from more than three years.   By a judgment of 14 January 1999 the District Court joined the three divorce suits. It dismissed the applicant’s wife’s two petitions and granted a divorce on the applicant’s petition. The applicant’s wife appealed and on 25 October 2000 the Court of Appeal increased the maintenance she had been granted. The proceedings for the division of the matrimonial assets are still pending.   The applicant complained under Article 6 § 1 (right to a hearing within a reasonable time) of the excessive length of the divorce proceedings. He also argued under Article 8 (right to respect for private and family life) that, as a result of the delays, he had been prevented from remarrying and beginning a new family life.   The Court noted that the proceedings had lasted just over 17 years and 1 month for two levels of jurisdiction. It found that although the case had been straightforward enough at the beginning, it had become more complex as it proceeded. The length of the proceedings was mainly due to the conduct of the parties, including, to a not insubstantial degree, the applicant. No particular delay was attributable to the Luxembourg authorities. However, irrespective of the parties’ conduct, proceedings of that length were difficult to reconcile with the Convention requirements for an effective and credible judicial system. In that connection, the Court noted that the Luxembourg legislature had brought in the Court Procedure Act of 11 August 1996 precisely in order to overcome the disadvantages of the system in force when the case was pending in the district court. Accordingly, it held that there had been a violation of Article 6 § 1 of the Convention.   As to the allegation of a violation of Article 8 of the Convention, the Court noted, firstly, that the applicant had not identified the precise grounds on which he said there had been an unjustified interference with his right to respect for his family life. Furthermore, it reiterated that Article 8 presupposed the existence of a family, whereas the applicant had not pointed to any existing family in respect of which Article 8 could apply. Consequently, the Court held unanimously that there has been no violation of that provision.   The Court considered that the finding of violation constituted in itself sufficient just satisfaction for the non-pecuniary damage that had been sustained. It awarded EUR 2,500 for costs and expenses. (The judgment is in French only).   (6)     Niziuk v. Poland (no. 64120/00)   Friendly settlement   Length of criminal proceedings   Piotr Niziuk, a Polish national, was born in 1973 and lives in Warsaw. On 20 May 1992 he was charged with causing a traffic accident occasioning death and serious bodily harm. He was convicted on 15 June 1993 and given a one-year suspended prison sentence. He appealed. After a number of procedural measures and several hearings, he was acquitted on 9   April 1999.   He complained, under Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention, that the proceedings had exceeded a reasonable time.   The case has been struck out following a friendly settlement in which EUR   3,367.98 is to be paid for any damage sustained and for costs and expenses. (The judgment is available only in English.)   Violations Article 6 § 1 (7)     Erdei and Wolf v. Romania (no. 38445/97) Violation Article 1 of Protocol No. 1   Nationalisation of property   Margareta Maria Victoria Erdei and her brother Hans Heincz Wolf are Romanian nationals who were born in 1936 and 1932 respectively and live in Timişoara.   Their grandfather owned a block of 16 flats in Timişoara which was nationalised by the State under Decree no.   92/1950. As heirs to the estate, the applicants brought an action claiming title to and restitution of the property. The Timişoara Court of First Instance found in their favour in a judgment that became final and unappealable.   However, the Supreme Court of Justice granted an application by the Principal State Counsel for Romania to have that judgment set aside, on the ground that the ordinary courts had no jurisdiction to review the application of nationalisation decrees. The applicants brought a fresh action for restitution of the property, but to no avail. In the meantime, the State sold some of the flats in the building to third parties. The applicants then brought a further action for a declaration that they were the lawful owners and an order setting aside the sale agreements that had been entered into by the State. The Timişoara Court of Appeal dismissed their application for an order setting aside the sales but ordered restitution of those flats that had not yet been sold. The applicants made two claims for damages: the first was dismissed, the second is still pending.   The applicants complained, under Article 6 § 1 (right to a fair hearing) of the Convention, of the Supreme Court of Justice’s refusal to accept that the domestic courts had jurisdiction to hear a claim to title to land. They also complained under Article 1 of Protocol No. 1 (protection of property) of a breach of their right to the peaceful enjoyment of their possessions.   The Court found that by setting aside a final judgment, the Supreme Court of Justice had contravened the principle of legal certainty and thereby violated the applicant’s right to a fair hearing, within the meaning of Article 6 § 1. It further held that the Supreme Court of Justice’s ruling that the courts had no jurisdiction to hear the applicants’ claim to title to the land was in itself contrary to the right of access to a court. Consequently, it held unanimously that there had been a violation of Article 6 § 1 under both heads.   The Court also noted that the applicants’ right of property had been established by a final judgment and had therefore been irrevocable. The Supreme Court’s judgment had had the effect of depriving them of their property. In those circumstances, the Court found that the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights had been upset; the applicants had had to bear an individual and excessive burden and, in respect of the part of the property that had not been returned, continued to do so. Accordingly, the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1.   Under Article 41 (just satisfaction) of the Convention, the Court held that Romania had to return to the applicants the part of the property that had not yet been returned to them within three months of the date on which this judgment became final. Failing that, the State was to pay them EUR   23,000 for pecuniary damage. (The judgment is available only in French.)   Violation Article 6 § 1 (8)     De Biagi v. San Marino (no. 36451/97)   (9)     Forcellini v. San Marino (no. 34657/97)     Lack of a public hearing   De Biagi v. San Marino Silvano de Biagi is a San Marinese national who was born in 1955 and lives at Borgo Maggiore (San Marino). In 1996 he was sentenced to four years and six months’ imprisonment for fraud and conspiracy. On appeal, the conspiracy conviction was quashed and the sentence for fraud reduced to three years and six months’ imprisonment.   Forcellini v. San Marino Pier Tarcisio Forcellini is a San Marinese national who was born in 1955 and lives at Domagnano (San Marino). In 1995 he was sentenced to three years’ imprisonment for conspiracy, fraud and tax evasion. On appeal, his sentence was increased to four years’ imprisonment.   The applicants in these two cases complained of a violation of Article 6 § 1 (right to a fair trial) on the ground that their trials were not held in public.   The Court reiterated that, at first instance, inherent in the notion of a fair trial was the right for the accused to be present at the hearing. On appeal to a court of appeal or court of cassation, the manner in which that notion was implemented in practice depended on the special circumstances of the case. In the de Biagi case, the Court noted that hearings had only been held during the investigative stage of the proceedings, for the purpose of taking evidence from witnesses. Subsequently, neither the Giudice Penale di Primo Grado nor the Giudice Penale delle Appellazioni Penali had had an opportunity to assess the applicant’s character at a hearing, as domestic law did not provide for a hearing. Mr de Biagi had therefore been unable to appear personally before the judges who would try him. In the Forcellini case, the Court reiterated that an appeal court that was required to examine issues of fact and law and to make an overall assessment regarding guilt or innocence could not reach a verdict without making a direct assessment of the evidence adduced in person by the accused. In the case before it, Mr Forcellini had not been given an opportunity to appear personally before the Giudice Penale delle Appellazioni Penali , who had tried him without being able to assess his character.   In the circumstances, the Court held unanimously that there had been a violation of Article 6 § 1 in these two cases, in that the domestic judicial system had not guaranteed the applicants the right to a fair trial. Under Article 41 (just satisfaction), the Court awarded each of the applicants EUR 4,000 for non-pecuniary damage. Mr de Biagi was awarded EUR 3,000 for costs and expenses and Mr Forcellini EUR 4,000. (The judgments are 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.