CEDH · PRESS;GENERAL;ENG — 11 décembre 2003

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[1]   Krone Verlag GmbH & Co KG v. Austria (no. 3) (application no. 39069/97) Violation Article 10 The applicant, Krone Verlag GmbH & Co KG, a Vienna-based company, owns the regional daily newspaper, the Neue Kronenzeitung . In December 1994 another regional newspaper, the Salzburger Nachrichten , brought legal proceedings against Krone Verlag GmbH & Co KG concerning an advertisement carried in the Salzburg edition of the Neue Kronenzeitung , which compared its monthly subscription rates with those of the Salzburger Nachrichten and claimed that the Neue Kronenzeitung was the “best” newspaper.   Finding, among other things, that the two newspapers were competing for the same readership, the Austrian courts banned Krone Verlag GmbH & Co KG from publishing the advertisement if it contained any generally pejorative statement or risked misleading customers in any way. The company was also banned from comparing the sale price of the two papers without also mentioning differences in their reporting styles concerning: foreign and domestic politics, the economy, culture, science, health and environmental and legal issues. The company appealed unsuccessfully.   Krone Verlag GmbH & Co KG complained that the second part of the injunction constituted a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.   The European Court of Human Rights considered that the Austrian courts had based their decision on inconsistent reasoning; on the one hand, that the two newspapers were not of comparable quality and that a comparison of their prices would therefore be misleading and, on the other, that they were competing in the same market for the same readership.   The Court also considered the injunction, which had far-reaching consequences for future advertising involving price comparison, to be far too broad. It impaired the very essence of price comparison. Its practical implementation would also have been very difficult for the applicant company, which risked being fined if it failed to comply with the order.   The Austrian courts had given priority to the protection of the reputation of the other newspaper and the right of the consumer to be protected against misleading advertising. However, when balancing the conflicting interests involved and taking account of the impact of the injunction on the applicant company’s options for advertising involving price comparison in the future, the courts had overstepped their margin of appreciation. The measure was therefore disproportionate.   The Court held unanimously that there had been a violation of Article 10 and awarded the applicant 680.22 euros (EUR) for pecuniary damage and EUR 6,000 for costs and expenses. (The judgment is available only in English.)   Violation Article 6 § 1 Karahalios v. Greece (no. 62503/00)   Violation Article 1 Protocol No. 1 The applicant, Ioannis Karahalios, is a Greek national who was born in 1942 and lives in Athens.   He is a civil engineer and building contractor who issued proceedings in the administrative courts for payment of the balance due to him for work performed under a public-works contract. On 16 November 1993 Tripolis Court of Appeal awarded him the sums claimed. That judgment became final on 1 March 1999 when an appeal on points of law by the Arkadia prefecture was dismissed. Despite the applicant’s efforts, the authorities failed to pay him the sums due under the judgment.   The applicant commenced enforcement proceedings. He obtained garnishee orders over two of the prefecture’s bank accounts for in excess of EUR 300,000. However he was unable to obtain payment, as the sum was then attached by his own creditors, including the State, to recover money he owed them.   The applicant complained under Article 6 § 1 (right to a fair trial) and Article 1 of Protocol No.   1 (protection of property) of the authorities’ refusal to comply with the order of the administrative courts.   The Court reiterated that the right to a court would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. The effective protection of a party to proceedings and the restoration of legality presupposed an obligation on the part of the authorities to comply with judgments of the highest administrative court of the State in that sphere. By failing to comply within a reasonable time with the judgment of the administrative court of appeal, which had become enforceable at the latest on 1 March 1999, the domestic authorities had rendered Article 6 § 1 ineffective. The Court accordingly unanimously found that there had been a violation of that provision.   In its judgment, the administrative court of appeal had accepted that the prefecture owed the applicant money. When that judgment became final, it conferred an undisputed right on the applicant. The Court found that by refusing over a substantial period to pay the applicant the sums due, the authorities had infringed his right to the peaceful enjoyment of his possessions. There was no valid justification for their interference. It was therefore arbitrary and contravened the rule requiring legal certainty. Consequently, 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 awarded Mr Karahalios EUR   10,000 for pecuniary damage, EUR 10,000 for non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available only in French.)   Violation Article 6 § 1 Violation Article 1 Protocol No. 1 Violation Article 8 Bassani v. Italy (no. 47778/99)   Violation Article 2 Protocol No. 4 The applicant, Giovanni Bassani, is an Italian national, who was born in 1948 and lives in Montegiorgio (Italy).   He formed a company that was put into liquidation by the Fremo District Court on 24 July 1976. The company was finally wound up on 19 December 2000.   The applicant complained under Article 6 § 1 (right to a trial within a reasonable time) of the length of the liquidation proceedings. He also complained that as a result of the winding up order he had been deprived of all his possessions in breach of Article 1 of Protocol No. 1 (protection of property). In addition, correspondence addressed to him had been handed over to the liquidator after the winding up order was made, in breach of Article 8 (right to respect for correspondence) and he had been prevented by the order from leaving the area in which he resided, in breach of Article 2 of Protocol No. 4 (freedom of movement).   The Court said that it had repeatedly found that a practice existed in Italy that was incompatible with the Convention, which resulted from an accumulation of breaches of the “reasonable-time” requirement. The requirement had been not been complied with in the proceedings in the case before it, which had lasted approximately 24 years and 5 months. The Court accordingly held unanimously that there had been a violation of Article 6 § 1.   The Court noted that it had found violations of the Convention in earlier cases that raised similar issues. In the case before it, the length of the liquidation proceedings had upset the fair balance that had to be struck between the general interest in ensuring the company’s creditors were paid and the applicant’s individual interest in securing the peaceful enjoyment of his possessions, respect for his correspondence and freedom of movement. The interference with the applicant’s rights and freedoms was disproportionate to the aim pursued. Accordingly, the Court held unanimously that there had been violations of Article 1 of Protocol No. 1, Article   8 and Article 2 of Protocol No. 4.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant EUR   48,000 for non-pecuniary damage and EUR 2,500 for costs and expenses.(The judgment is available only in French.)   Carbonara and Ventura v. Italy (no. 24638/94)   Just satisfaction The applicants, Elena Carbonara, Pasquale Carbonara, Augusto Carbonara and Costantino   Ventura, are Italian nationals. They were deprived of their land by the local authorities under the “constructive-expropriation rule” that had been established by the Italian courts. The rule precludes the restitution of land on which building works in the public interest have been completed.   They owned agricultural land in Noicattaro. By a decree issued in May 1970, the Prefecture of Bari had authorised Noicattaro Town Council to take possession, under an expedited procedure, of part of the land with a view to its expropriation to build a school. Although the council took possession of the land in June 1970, the school was not completed until October 1972, after the authorised period of possession had expired. The applicants alleged that they had waited in vain for several years for their land to be formally expropriated and for compensation. They tried unsuccessfully to sue the Town Council.   On 30 May 2000 the European Court of Human Rights found a violation of Article 1 of Protocol No. 1 (protection of property) and reserved the question of just satisfaction, as it was not ready for decision. In November 2001 the Court ordered an expert valuation of the land, the expert’s terms of reference to include an assessment of its current value and value when occupied, and estimates of what the pecuniary damage would be if the property was returned and if it was not. The parties jointly instructed a valuer.   Under Article 41 (just satisfaction) of the Convention, the Court unanimously awarded the applicants EUR 1,385,394.60 for pecuniary damage, EUR 200,000 for non-pecuniary damage and EUR 40,000 for costs and expenses. It also ordered the Italian state to pay the costs of the valuation. (The judgment is available only in French.)   Frascino v. Italy (no. 35227/97)   Violation Article 1 Protocol No. 1 The applicant, Angelo Frascino, is an Italian national who was born in 1928.   In January 1969 his predecessor in title, Ms M., sought planning permission for a plot of land she owned. Following a deemed refusal of planning permission through the local authority’s failure to reply to her application, she sought judicial review in the administrative courts, which quashed the refusal and ordered the local authority to grant the planning permission. The local authority refused to do so on the ground that the land was situated in a beauty spot. Ms M. brought further proceedings in the administrative courts.   In a judgment of 7 May 1991, the Consiglio di Stato ordered the local authority to grant Ms   M. planning permission within 30 days. The applicant purchased the land concerned in December 1991, but has yet to receive the planning permission.   He complained under Article 1 of Protocol No. 1 (protection of property) of a violation of his right to the peaceful enjoyment of his possessions.   By failing to comply with the Consiglio di Stato ’s judgment of 7 May 1991, which was final and enforceable, the authorities had interfered with the applicant’s right of property. The Court noted that the authorities should have complied with that judgment and granted the applicant planning permission. There was, therefore, no basis in law for their failure to comply with the judicial decision. The Court accordingly held unanimously that there had been a violation of Article 1 of Protocol No. 1 and awarded the applicant EUR 75,000 for pecuniary and non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)             The applicants in the following seven Italian cases below complained about their prolonged inability – through a lack of police assistance – to recover possession of their apartments and about the duration of the eviction proceedings. They relied on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No.   1 (protection of property).   Violation Article 6 § 1 Violation Article 1 Protocol No. 1   Pecuniary damage Non-pecuniary damage Costs and expenses Alfano v. Italy (n o 30878/96) 8,750 3,000 2,000 Carignani v. Italy (n o 31925/96) 8,000 8,000 1,500 Di Matteo v. Italy (n o 37511/97)        65,000 3,000 2,000 Liguori v. Italy (n o 64254/01)        16,200 3,000 3,500 In all four of these cases the Court held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. The Court awarded the applicants the amounts indicated in euros for pecuniary and non-pecuniary damage and for costs and expenses. ( Alfano v. Italy and Di Matteo v. Italy are available only in French and the other two judgments, only in English.)   Friendly settlements Coviello v. Italy (no. 39179/98) Forte and Di Giuliano v. Italy (no. 61998/00) These two cases have been struck out following friendly settlements in which Mr Coviello is to receive EUR 3,000 and Mr Forte and Mrs Di Giuliano are to receive EUR 2,500 each. (The judgments are available only in English.)   Baldi v. Italy (no. 32584/96)   Striking out No reply having been received by the Court to its requests for information from the applicant in this case, the Court considered that he did not intend to pursue the application and decided, unanimously, to strike the case out of the list. (The judgment is available only in English.)     Girdauskas v. Lithuania (no. 70661/01)   Violation Article 6 § 1 The applicant, Vytas Girdauskas, is a Lithuanian national, who was born in 1947 and lives in Kaunas, Lithuania. He was arrested on 15 May 1995 in connection with financial irregularities and charged with misappropriation. The proceedings are still pending in the domestic courts.   The applicant complained under Article 6 § 1 (right to a trial within a reasonable time) of the length of the criminal proceedings.   The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 4,000 for non-pecuniary damage and EUR   4,000 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 Press 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 by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [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.