CEDH · PRESS;GENERAL;ENG — 27 avril 2004

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[1]   Maat v. France (application no. 39001/97)   Violation Article 6 §§ 1 and 3 (c) The applicant, Arij Maat, is a Netherlands national who was born in 1947 and lives in Norway. He was the joint manager of a company that was put into compulsory liquidation by the Grenoble Commercial Court in 1990.   Criminal proceedings were instituted against him for misappropriating company assets, fraudulent bankruptcy through concealment of assets, and fraud. In 1996 he was found guilty of fraud and was sentenced in absentia to 18 months’ imprisonment and fined one million francs. He applied to have the judgment set aside and, together with his counsel, attended the hearing at the Grenoble Criminal Court. The court confirmed his sentence and, on account of his absence when judgment was delivered, issued a warrant for his arrest as a security measure. An appeal by the applicant was declared inadmissible.   Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial) of the European Convention on Human Rights, the applicant complained of the unfairness of the proceedings against him. He submitted that he had been unable to make submissions in the Court of Appeal through his lawyer and alleged a breach of his right of access to a court on account of his inability either to apply to the Court of Appeal to set aside the judgment it had given in absentia , or to lodge an appeal on points of law, without first surrendering to custody.   As to the obligation to surrender to custody in order to have access to a court, the European Court of Human Rights noted that an appeal on points of law had not been a remedy available to the applicant and therefore decided that it was not necessary to examine the complaint in terms of access to the Court of Cassation, instead limiting its examination to the issue of access to the Court of Appeal.   The obligation for the applicant to make himself available to the judicial authorities had resulted from the judgment at first instance; the applicant had been refused leave to appeal against that judgment and had subsequently been unable to apply to have it set aside. The fact that the Court of Appeal had declared the applicant’s appeal inadmissible on the ground that he had not surrendered to a warrant for his arrest, and the resulting obligation for him to comply with the warrant in order to be able to lodge an application to set aside, had had the effect of making the right to a fair hearing conditional on his offering up his physical liberty as a form of guarantee. In those circumstances, the Court considered that the applicant had suffered a disproportionate restriction on his right of access to a court and held unanimously that there had been a violation of Article 6 § 1.   As to whether the rights of the defence had been respected, the Court noted that the applicant’s failure to appear in court, as a consequence of the arrest warrant issued by the Criminal Court, had been punished by the Court of Appeal, which had prohibited him from being represented. His counsel had not been granted leave to appeal and had been unable to address the court in the applicant’s absence. The applicant had therefore been denied the opportunity of having submissions made on his behalf, at least on issues of admissibility, in the Court of Appeal and, as a result, of obtaining a judicial review of the grounds on which his excuse for being absent had been rejected. Accordingly, the Court held unanimously that there had been a violation of Article 6 § 3 (c).   The Court considered that the finding of a violation was sufficient to make good the non-pecuniary damage sustained by the applicant and awarded him 3,825 euros (EUR) for costs and expenses. (The judgment is available only in French.)   Madi v. France (no. 51294/99)   Friendly settlement The applicant, Abdelmadjid Madi, is an Algerian national who was born in 1952 and lives in Ensisheim (France).   In the course of a police operation concerning drug-related offences, the applicant was taken into police custody from 26 to 28 November 1991 and was questioned by officers from the Seine-Saint-Denis Criminal Investigation Department. While in custody he was twice examined by a doctor, who observed, among other things, bruising, pain in the scalp and various aches and pains. Proceedings were brought against the applicant, and in September 1993 he was sentenced to ten years’ imprisonment and permanently excluded from French territory.   In the meantime, the applicant and Ahmed Selmouni, a fellow detainee under investigation for the same offences, lodged a complaint alleging assault during their time in custody and a judicial investigation was opened.   In a judgment of 1 July 1999 the Versailles Court of Appeal found four police officers guilty of “assault and wounding with or under the threat of the use of a weapon, occasioning total unfitness for work for less than eight days in the case of Selmouni and more than eight days in the case of Madi, by police officers in the course of their duty and without legitimate reason”. It sentenced them to terms of imprisonment, which in most cases were suspended, and ordered them to pay damages.   The applicant alleged a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 6 § 1 (right to a hearing within a reasonable time) on account of the ill-treatment to which he had been subjected while in police custody and the length of the proceedings concerning his complaint against the police officers.   The application has been struck out following a friendly settlement in which the applicant is to receive EUR 99,091. (The judgment is available only in French.)   Doerga v. the Netherlands (no. 50210/99)           Violation Article 8 The applicant, Subhas Ranbier Doerga, is a Netherlands national who was born in 1953. At the time of the introduction of his application, he was serving a prison sentence in the Netherlands.   On or around 26 January 1995 suspicions arose that the applicant, who was at that time imprisoned in the Marwei Penitentiary in Leeuwarden, was involved in giving the Leeuwarden police a false tip-off by telephone that three named detainees were planning to escape from prison by taking hostages. As a result, his telephone conversations were tapped and recorded on tape.   These taped conversations, which had been retained in case the applicant was ever involved in giving further false telephone tip-offs, were later made available to criminal investigators looking into a bomb attack on 3 October 1995 in which the applicant was suspected to have been involved.   On 4 November 1997 Amsterdam Court of Appeal convicted the applicant of a number of offences, including complicity in (attempted) pre-meditated grievous bodily harm and causing an explosion endangering property and life. He was sentenced to nine years’ imprisonment. His conviction was based, among other things, on one of his telephone conversations that had been tapped and recorded before 3   October 1995 by the Marwei Penitentiary authorities. He appealed unsuccessfully.   The applicant complained, under Article 8 (right to respect for private life and correspondence) of the Convention, about the tapping and recording of his telephone conversations and the retention of those recordings.   Although the Court accepted that it might be necessary to monitor detainees’ contacts with the outside world, including contacts by telephone, it did not find that the rules concerning the monitoring of prisoners’ calls in the Netherlands were sufficiently clear and detailed to give appropriate protection against arbitrary interference by the authorities with the applicant’s right to respect for his private life and correspondence. The Court therefore held, unanimously, that there had been a violation of Article 8 and awarded the applicant EUR 2,500 for costs and expenses. (The judgment is available only in English.)   M.B. v. Poland (no. 34091/96)         Violation Article 5 §§ 3 and 4 Mr M.B. a Polish national born in 1967, suffered from Marfan syndrome (a connective tissue disorder) from which he died on 26 July 1998.   On 30 March 1995 the Białystok Regional Prosecutor ordered the applicant’s detention on remand on suspicion of having obtained under false pretences a loan of 380,000 US dollars from a State-owned bank. The loan had not been reimbursed.   Mr M.B. requested his release several times on the ground, among other things, of his poor health. He was still in detention when he died.   The applicant alleged, in particular, that he was arrested by a public prosecutor who was not a judge or an officer authorised by law to exercise judicial power, as required by Article 5 (right to liberty and security) of the Convention. He further complained, under Article 5, that in the proceedings concerning his detention he was never brought before a judge.   The European Court of Human Rights recalled that it had already found, at the time in question, that a prosecutor in Poland could not be regarded as a “judicial officer” endowed with the attributes of “independence” and “impartiality” required under Article 5 § 3.   The Court therefore held unanimously that there had been a violation of Article 5 § 3.   Concerning Article 5 § 4, the Court observed that Polish law did not entitle either the applicant or his lawyer to attend the court sessions concerning an appeal against a detention order or proceedings concerning the review of the lawfulness or prolongation of detention.   Neither did the law require the prosecutor’s submissions to be communicated either to the applicant or to his lawyer. In the Court’s opinion, the applicant’s worsening state of health, which finally led to his death, was also a factor which should have militated in favour of his appearing in person. There was a strong probability that the applicant’s presence could have convinced the authorities that he should have been released. Finding that the applicant did not have access to a truly adversarial procedure, the Court held, unanimously, that there had been a violation of Article 5 § 4.     The Court awarded the applicant EUR 2,500 for non-pecuniary damage. (The judgment is available only in English.)   E.O. and V.P. v. Slovakia (nos. 56193/00 & 57581/00)   Violation Article 6 § 1   Violation Article 13 Ms E.O. is a Slovakian national and Mr V.P. is a Czech national.   Mr V.P. and Ms E.O.’s daughter were officially divorced on 18 July 1985, with the mother being granted custody of their daughter. In 1993 the mother married again and moved abroad with her daughter.   On 8 January 1996 Ms E.O. filed an action claiming that she should be granted the right to educate the girl, who was then 14-years-old, on the ground that her daughter had failed to take proper care of the girl. She further submitted that Mr V.P. was in agreement with her proposal. On 31 May 1996 the District Office in Veľký Meder issued an interim measure ordering that the child be temporarily placed in Ms E.O.’s care. The child’s mother refused to comply.       On 10 March 1997 Mr V.P. appealed against a district court decision dismissing his request to prevent his daughter travelling abroad without his permission.   On 21 January 2000 Dunajská Streda District Court discontinued the proceedings concerning both applicants’ claims, because the child in question had reached her majority at the end of 1999.   The applicants complained, under Article 6 § 1 (right to a fair hearing within a reasonable time), about the length of the proceedings. They also complained under Article 6 § 1 that they were denied access to a court. They further relied on Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy).   Noting that the proceedings had lasted four years and 13 days concerning Ms E.O.’s complaint and three years, nine months and six days concerning Mr V.P.’s, the Court held, unanimously, that there had been a violation of Article 6 § 1, concerning the length of the proceedings Concerning the right of access to a court, the Court observed that the applicants did not complain that the scope of Slovakian courts’ jurisdiction to examine their action was insufficient; they complained about the domestic courts’ failure to determine the merits of their action. That failure was due to the fact that the proceedings had to be discontinued, after approximately four years, as the child concerned had reached the age of majority.     In those circumstances, and in view of the finding that there had been a violation of Article 6 § 1, the Court did not consider it necessary to examine separately the complaint about access to a court. The Court further considered that it was not necessary to examine the issues raised under Article 8. Concerning Article 13, the Court found that, prior to a constitutional amendment which entered into force on 1 January 2002, there was no effective remedy in Slovakia concerning complaints about the excessive length of proceedings. The Court therefore held, unanimously, that there had been a violation of Article 13.   Ms E.O. and Mr V.P. were awarded respectively EUR 3,200 and EUR 3,000 for non-pecuniary damage and EUR 2,000 jointly for costs and expenses. (The judgment is available only in English.)   Gorraiz Lizarraga and Others v. Spain (no. 62543/00)   No violation Article 6 § 1 The applicants are five Spanish nationals who live in Itoiz (Spain), and an association, Coordinadora de Itoiz, of which they are members. They brought proceedings against plans to build a dam in Itoiz (province of Navarre) that would result in three nature reserves and a number of small villages, including Itoiz, being flooded.   The Audiencia Nacional partly allowed their application in September 1995 and ordered the suspension of the work. On 17 June 1996 the parliament of the Autonomous Community of Navarre passed Law no. 9/1996 on natural sites in Navarre, which amended the rules applicable to conservation areas in nature reserves and, in the applicants’ submission, effectively allowed work on the dam to continue.   On an appeal on points of law by the State and the Navarre Autonomous Government against the judgment of the Audiencia Nacional , the Supreme Court reduced the scale of the projected dam. The State and the Autonomous Government argued that they were unable to execute that judgment in the light of the Autonomous Community’s Law no. 9/1996. The Audiencia Nacional asked the Constitutional Court to rule on a preliminary question by the applicant association as to the constitutionality of certain provisions of the Law. In a judgment of 14 March 2000 the Constitutional Court held that Law no. 9/1996 was constitutional.   Relying on Article 6 § 1 (right to a fair hearing) of the Convention, the applicants submitted that they had not had a fair hearing in that they had been prevented from taking part in the proceedings concerning the reference of the preliminary question, whereas the State and State Counsel’s Office had been able to submit observations to the Constitutional Court. The five individuals among the applicants also argued that the Autonomous Community law had been enacted with a view to preventing execution of the Supreme Court’s judgment, thereby interfering with their right to respect for their private and family life and for their home as guaranteed by Article 8 of the Convention, and with their right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1 (protection of property).   As to the alleged breach of the principle of equality of arms, the Court observed that all the applicants’ pleadings alleging that the Autonomous Community law was unconstitutional had been forwarded to the Constitutional Court, which had formally added them to the case file before giving its ruling. It further appeared that the applicants had not at any time applied to the court to take part in the proceedings. Lastly, the court had fully addressed the arguments they had submitted throughout the proceedings. Having regard to the special features of the reference of constitutionality issues for a preliminary ruling, the Court held unanimously that there had been no violation of Article 6 § 1.   As to the alleged interference by the legislature with the outcome of the dispute, the Court considered that although the enactment of the Autonomous Community law had indisputably been unsupportive of the applicants’ submissions, it could not be said to have been intended to circumvent the principle of the rule of law. After it had been passed, the applicants had had some of its provisions referred for a preliminary ruling by the Constitutional Court, which had ruled on the merits of their submissions, examining them on the same terms as those of the Government and the Navarre Parliament. The Court therefore held unanimously that there had been no violation of Article 6 § 1 under that head.   As to the complaints under Article 8 and Article 1 of Protocol No. 1, the Court considered that there was no need to examine them separately. (The judgment is available only in French.)   Hill v. the United Kingdom (no. 19365/02)       Violation Article 5 §§ 4 and 5 Robert Hill is a United Kingdom national, born in 1959, who is currently in HM Prison Doncaster (England).   Mr Hill was convicted in or around 1981 for the murder of an acquaintance and sentenced to mandatory life imprisonment. His tariff (the minimum period of imprisonment required to satisfy the requirements of retribution and deterrence) was set at 12 years.   In 2001 the Parole Board recommended that he be transferred to open conditions, and that his detention be reviewed after two years. By letter dated 6 July 2001 the Secretary of State informed the Prison Service that he did not accept the Parole Board’s recommendation for transfer to open conditions, and that the next review should begin after 12 months.   The applicant complained that the Parole Board did not provide the guarantees and procedures required by the Convention when examining whether he should be released and that he had no enforceable right to compensation for any breach of his rights. He relied on Article 5 (rights to liberty and security).   The Court recalled that it had already found that the continued detention of a mandatory life prisoner sentenced for murder depended, after the expiry of the tariff, on elements of risk and dangerousness that could change with the course of time. Article 5 § 4 therefore required that the applicant should be able periodically to challenge the continuing legality of his detention in an appropriate procedure.   The applicant’s tariff expired in or about 1993. While the Parole Board reviewed the applicant’s case in 2001, it did not have any power to order his release and could only make recommendations to the Secretary of State. Nor did any oral hearing take place, with the opportunity to examine or cross-examine witnesses relevant to any allegations that the applicant remained a risk to the public. The fact that the Parole Board had never in fact recommended this applicant’s release did not deprive him of the right to have a review by a body offering the requisite guarantees. The Court concluded, unanimously, that there had been a violation of Article 5 § 4   The Court also held, unanimously, that there had been a violation of Article 5 § 5 in that no possibility of obtaining compensation existed at the relevant time in domestic law in respect of the violation of Article 5 § 4.   The applicant was awarded EUR 2,200 for non-pecuniary damage and EUR 3,827 for costs and expenses. (The judgment is available only in English.)   Kansal v. the United Kingdom (no. 21413/02)       Violation Article 6 § 1 Yash Kansal is a United Kingdom national, born in 1947 and living in Oldham (England),   From 1977 he ran a company which operated 20 chemist shops. Following financial problems, the company went into liquidation in February 1987. On 11 March 1988, a bankruptcy order was made against the applicant.   On 29 July 1988, he was publicly examined by the official receiver. Under section 291 of the Insolvency Act 1986, the applicant was obliged to answer the questions put to him by the official receiver. If he failed to comply without reasonable excuse, he would have been guilty of contempt of court and liable to punishment by a fine or imprisonment.     On 16 March and 23 March 1988, a building society advanced 150,000 pounds sterling (GBP) and GBP 116,250 respectively to the applicant. On 23 March 1988, the applicant’s wife collected part of the advance, GBP 104,000, and took it to India in a bin liner.   The applicant was subsequently charged with two offences of obtaining property by deception and two offences of removing property required to be delivered to the official receiver and failing to account for the loss of property while bankrupt.   At his trial, the prosecution introduced as evidence the transcript of the examination of the applicant by the official receiver in the bankruptcy proceedings. The full transcript was placed before the jury and in his summing up, the judge stated that the transcript “could be very important”. On 18 February 1992, the applicant was convicted of the four offences charged and was sentenced to 15 months’ imprisonment.   On 24 May 2001, the Court of Appeal overturned the applicant’s conviction on the grounds that the answers given by the applicant in his examination by the official receiver had been wrongly admitted at trial and in breach of Article 6 of the European Convention on Human Rights. The court found that the Human Rights Act 1998 could apply retrospectively. On 29 November 2001, the House of Lords ruled that the Human Rights Act 1998 could not apply retrospectively to allow a defendant whose trial took place before the Act came into force to rely on a breach of the Convention in a later appeal.   The applicant complained that statements he made under compulsion in bankruptcy proceedings should not have been admitted in criminal proceedings against him. He relied on Article 6 § 1 (right to a fair trial).   The European Court of Human Rights observed that the transcripts of the examination of the applicant by the official receiver, which were obtained under the exercise of compulsory powers, were used in evidence against the applicant during his trial and played a significant part in the case against him. Finding that there had been an infringement of the right not to incriminate oneself, the Court held, unanimously, that the applicant was deprived of a fair hearing, in violation of Article 6 § 1. The Court further held, unanimously, that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage. (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. [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.