ECHR: Chamber judgements of 24.07.2008

Press release issued by the Registrar

Chamber judgments concerning 
Bulgaria, the Czech Republic, France, Russia and Ukraine

The European Court of Human Rights has today notified in writing the following eight Chamber judgments, none of which are final.

Repetitive cases and one length-of-proceedings case, with the Court's main finding indicated, can be found at the end of the press release.

Violation of Article 6 §§ 1, 2, and 3 (d) (fairness)

Melich and Beck v. the Czech Republic (application no. 35450/04)

The applicants, Lubor Melich and Martin beck, are Czech nationals who were born in 1978 and 1977 respectively and live in Prague.

In January 1999, during an identity check, a scuffle broke out between the applicants and three police officers. The applicants were prosecuted for assaulting a public servant and given a suspended sentence of two months' imprisonment. In October 2001, on appeal by the second applicant, the Constitutional Court set aside the decisions of the lower courts, noting a number of defects during the investigation. In particular, it found that the police officers in charge of the inquiry had not secured sufficient evidence for the facts to be established as completely as possible, including circumstances favourable to the applicants, by failing for example to identify a larger number of witnesses. In the Constitutional Court's opinion, a lack of evidence or shortcomings in the establishment of the facts could not be held against the defendants. At the end of the proceedings which followed the Constitutional Court's judgment, the applicants were once again found guilty and sentenced to two months' imprisonment, suspended. They lodged a second constitutional appeal, alleging among other complaints that the criminal proceedings taken as a whole had failed to meet the requirements of a fair trial and that the courts had not complied with the principles of the presumption of innocence and benefit of the doubt. The Constitutional Court dismissed that appeal in March 2004.

Relying on Article 6 (right to a fair trial) of the European Convention on Human Rights, the applicants complained that the proceedings against them had not been fair, particularly because the production and assessment of the evidence had been arbitrary and because the judges had been convinced of their guilt in advance.

The Court noted that a number of shortcomings had been noted by the Constitutional Court in its decision of October 2001, but were not remedied in the subsequent proceedings. The Court considered that because the overall effect of the shortcomings concerned had been so restrictive of the rights of the defence the principle of fair trial had been infringed. It accordingly concluded unanimously that there had been a violation of Article 6 §§ 1, 2 and 3 (d) of the Convention and held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. (The judgment is available only in French.)

Violation of Article 6 § 1 (fairness)

Violation of Article 8

André and Other v. France (no. 18603/03)

The applicants are Marc André, a lawyer who was born in 1951 and lives in Marseille, and a civil-law professional partnership, André, André and partners, a law firm.

The case concerned a search of the applicants' offices in June 2001 by tax inspectors with a view to the discovery of evidence against a client company of the applicants' practice which was suspected of tax evasion. The search was conducted in the presence of Mr André, the chairman of the Marseilles Bar Association and a senior police officer, and 66 documents were seized. They included hand-written notes and a document with a comment in the first applicant's handwriting; the chairman of the Bar Association pointed out that these were the lawyer's personal documents and were accordingly protected by the rule of absolute professional confidentiality and could not be seized. The applicants complained that the search and the seizures had been unlawful in proceedings which ended with an appeal on points of law which was dismissed by the Court of Cassation. Relying in particular on Article 6 § 1 (right to a fair trial) and Article 8 (right to respect for private and family life), the applicants complained of an infringement of their defence rights, of a breach of professional confidentiality and the lack of an effective remedy whereby they could contest the lawfulness of the searches and seizures at their offices.

The Court observed first of all that it had already examined the various judicial remedies in domestic law in a previous case (Ravon v. France, application no. 18497/03), and had found that they did not meet the requirements of the Convention. It accordingly held unanimously that there had been a violation of Article 6 § 1 (right of access to a court) on account of the lack of effective judicial review.

As regards the complaint under Article 8, the Court considered that it was essential for searches at a lawyer's office to be attended by special safeguards. It was also vital to provide a strict regulatory framework for such measures. The Court noted that the search had been attended by a special safeguard since the chairman of the Marseilles Bar Association had been present. On the other hand, apart from the fact that the judge who had authorised the search was not present, the presence of the chairman of the bar and his protests were not adequate to prevent the effective disclosure of all the documents at the practice or their seizure. In addition, the tax inspectors and the senior police officer had been given extensive powers by virtue of the broad terms of the search warrant. Lastly, the Court noted that in the context of a tax inspection into the affairs of the applicants' client company the tax inspectorate had targeted the applicants for the sole reason that it was finding it difficult to carry out the necessary checks and to find documents capable of confirming the suspicion that the company was guilty of tax evasion, although at no time had the applicants been accused or suspected of committing an offence or participating in a fraud committed by their client. Accordingly, considering that the search and seizures had been disproportionate to the aim pursued, the Court held unanimously that there had been a violation of Article 8.

It awarded Mr André 5,000 euros (EUR) for non-pecuniary damage and EUR 10,000 to the applicants jointly for costs and expenses. (The judgment is available only in French.)

Repetitive cases

The following cases raise issues which have already been submitted to the Court.

Violation of Article 6 § 1 (fairness)

Arouette v. France (no. 42122/04)

The Court unanimously found the above violation on account of the failure to provide the applicant with a copy of the reporting judge's report prior to the hearing before the Criminal division of the Court of Cassation.

Violation of Article 6 § 1 (fairness)

Violation of Article 1 of Protocol No. 1

Kukalo v. Russia (no. 11319/04)

Gayevskaya v. Ukraine (no. 9165/05)

Two violations of Article 6 § 1 (fairness)

Two violations of Article 1 of Protocol No. 1

Violation of Article 13

Petrov v. Russia (no. 15890/04)

Violation of Article 1 of Protocol No. 1

Brushnytskyy v. Ukraine (no. 29439/04)

The Court found the above violations in these four cases concerning the domestic authorities' failure to enforce final judgments in the applicants' favour in good time or at all, as well as, in the case of Petrov, concerning the quashing of a final judgment by way of supervisory review.

Length-of-proceedings case

In the following case, the applicant complained in particular about the excessive length of (non-criminal) proceedings.

Violation of Article 6 § 1 (length)