ECHR: Press release issued by the Registrar
Violation of Article 14 in conjunction with Article 9
Lang
v. Austria (application no. 28648/03)
The
applicant, Gerhard Lang, is an Austrian national who was born in 1969
and lives in Altmünster (Austria). He is a Jehovah’s
Witness and is an elder (Ältester) for the community
which involves providing pastoral care, leading church services and
preaching. Relying in particular on Articles 4 (prohibition of forced
labour), 9 (freedom of thought, conscience and religion) and 14
(prohibition of discrimination) of the European Convention on Human
Rights, he complained that he had not been exempt from military
service, unlike members of other recognised religious societies
holding comparable religious functions. The European Court of Human
Rights considered the Austrian Military Service Act discriminatory
and held, by six votes to one, that, as a result of the application
of that Act, Mr Lang had not been exempt from military service, in
violation of Article 14 in conjunction with Article 9. The
Court awarded Mr Lang 12,664.36 euros (EUR) for costs
and expenses.
Violation of Article 3 (treatment)
Violation of Article 5 § 3
Lyubimenko
v. Russia (no. 6270/06)
The
applicant, Aleksandr Lyubimenko, is a Russian national who was born
in 1979 and has been in detention in Volgograd (Russia) on suspicion
of aggravated murder and harbouring criminals since July 2003. The
criminal proceedings against him are currently still pending before
the trial court. Relying on Article 3 (prohibition of inhuman or
degrading treatment) and Article 5 § 3 (right to
liberty and security) of the Convention, Mr Lyubimenko complained in
particular about the inhuman conditions and excessive length of his
detention. The Court held unanimously that there had been a violation
of Article 3 on account of Mr Lyubimenko having been kept in
overcrowded cells, and a violation of Article 5 § 3
on account of him having been detained in custody for more than five
years and seven months. The Court awarded Mr Lyubimenko
EUR 8,000 for non-pecuniary damage.
Violations of Article 3 (torture and investigation)
Violation of Article 5 § 3
Violation of Article 6 § 1 (length)
Polonskiy
v. Russia (no. 30033/05)
The
applicant, Aleksandr Polonskiy, is a Russian national who was born in
1968 and has been detained in Volgograd (Russia) on charges of
membership of an armed criminal gang, robbery, infliction of serious
injuries and murder since April 2003. Those criminal proceedings
against him are currently still pending before the trial court. He
was also arrested in January 2003 on charges of unlawful possession
of arms and forgery for which he was subsequently convicted and
sentenced to three years’ imprisonment. Relying on Articles 3
(prohibition of inhuman or degrading treatment) and 13 (right to an
effective remedy), the applicant alleged that he had been beaten and
subjected to electric-shock treatment by the police during his arrest
in January 2003 and that the investigation into his allegations had
been inadequate. Further relying on Article 5 § 3
(right to liberty and security) and Article 6 § 1
(right to a fair trial within a reasonable time), he complained about
the excessive length of the criminal proceedings against him and of
his detention pending trial. Lastly, he complained, under Article 1
of Protocol No. 1 (protection of property), about the
non-enforcement of a judgment in his favour by which two of his cars,
impounded by the police during the proceedings against him, should
have been returned to him.
The Court
held unanimously that there had been a violation of Article 3 on
account of Mr Polonskiy having been tortured by the police, as
well as on account of the ineffectiveness of the investigation into
his allegations of ill-treatment. The Court further held that there
had been a violation of Article 5 § 3 on account
of the excessive length, more than five years and ten months, of
Mr Polonskiy’s detention pending trial and a violation of
Article 6 § 1 on account of the excessive length,
more than five years and ten months, of the criminal proceedings
against him. Mr Polonskiy was awarded EUR 30,000 in respect
of non-pecuniary damage.
Violation of Article 5 § 3
Shkilev
v. Russia (no. 13541/06)
The
applicant, Yuriy Shkilev, is a Russian national who was born in 1976
and has been in detention in Volgograd (Russia) on suspicion of
aggravated murder since April 2003. The criminal proceedings against
him are currently still pending before the trial court. Relying in
particular on Article 5 § 3 (right to liberty and
security), Mr Shkilev complained about the excessive length of his
detention. The Court held unanimously that there had been a violation
of Article 5 § 3 on account of the excessive
length, more than five years and ten months, of Mr Shkilev’s
detention, and awarded him EUR 5,000 in respect of non-pecuniary
damage.
Violation of Article 3 (treatment)
Abdelhedi
v. Italy (application no. 2638/07)
Ben
Salah v. Italy (no. 38128/06)
Bouyahia
v. Italy (no. 46792/06)
C.B.Z.
v. Italy (no. 44006/06)
Darraji
v. Italy (no. 11549/05)
Hamraoui
v. Italy (no. 16201/07)
O.
v. Italy (no. 37257/06)
Soltana
v. Italy (no. 37336/06)
The
applicants are Tunisian nationals living in Italy: Mohamed Abdelhedi,
Ben Salah, Maher Ben Abdelaziz Bouyahia, C.B.Z., Kamel Darraji, Kamel
Ben Boundi Hamraoui, O. and Mohamed Ben Salah Soltana, who were born
in 1965, 1967, 1970, 1976, 1965, 1977, 1960 and 1973 respectively. In
the eight cases the applicants alleged, in particular, under
Article 3 of the European Convention on Human Rights
(prohibition of torture and inhuman or degrading treatment) that
enforcement of the decisions ordering their deportation to Tunisia
would place them at risk of torture. In addition, the applicants in
Ben Salah, Darraji and Hamraoui
relied on Article 2 (right to life) of the Convention, and the
applicants in C.B.Z., O. and Soltana
on Article 8 (right to respect for private and family life). In the
cases of Bouyahia and Darraji, the
applicants also relied on Article 6 (right to a fair trial).
The European Court of Human Rights reiterated that in its Grand
Chamber judgment in the case of Saadi v. Italy (28
February 2008, application no 37201/06), it had concluded that many
international sources referred to numerous and regular instances of
torture and
ill-treatment inflicted in Tunisia on persons
suspected or found guilty of terrorism, and that visits by the
International Committee of the Red Cross to Tunisian prisons could
not exclude the risk of subjection to treatment contrary to Article
3. In these eight cases it did not see any reason to review those
conclusions, which had moreover been confirmed by Amnesty
International’s report on Tunisia for 2008. Furthermore, the
Court was unable to accept the Italian Government’s submission
that the diplomatic assurances given by the Tunisian authorities
offered effective protection against the serious risk of
ill-treatment run by the applicants. Accordingly, the Court concluded
– unanimously – that, in the event that the decisions to
deport the applicants to Tunisia were enforced, there would be a
violation of Article 3. It also held that there was no need to
examine the applicants’ complaints under Articles 2,
8 and 6.
The
applicant in Abdelhedi did not submit a claim for just
satisfaction. In the other cases the Court held that the finding of a
violation constituted just satisfaction in respect of non-pecuniary
damage suffered by the applicants. It also awarded 5,000 euros (EUR)
to Mr Bouyahia, EUR 4,150 to Mr C.B.Z. and EUR 5 ,000
to Mr Hamraoui for costs and expenses. (The judgments are available
only in French.)
No violation of Article 6 § 1 (fairness)
Poppe
v. the Netherlands (no. 32271/04)
The
applicant, Bart Poppe, is a Dutch national who was born in 1966 and
lives in Amsterdam. In April 2000 Mr Poppe was arrested on suspicion
of various drug-related offences; he was ultimately convicted of
facilitating drug trafficking and participating in a criminal
organisation and sentenced to two years and ten months’
imprisonment. Relying on Article 6 § 1 (right to
an impartial tribunal), Mr Poppe complained that two of the judges of
the first instance court that tried him had taken part in the trial
of a number of his co-accused and had, in the judgments convicting
them, found him to be connected with the criminal offences at issue.
The Court
found that fears which Mr Poppe could have experienced as regards
bias on the part of the domestic court had not been objectively
justified, in particular as he had not challenged the personal
impartiality of the judges concerned. The Court therefore held by six
votes to one that there had been no violation of Article 6 § 1.
(The judgment is available only in English.)
Violation of Article 6 § 1 (fairness)
Niţescu
v. Romania (no. 26004/03)
The
applicant, Gheorghe Constantin Niţescu, is a Romanian national
who was born in 1924 and lives in Piteşti (Romania). Relying on
Article 6 § 1 (right to a fair hearing), Article 8 (right to
respect for private and family life) and Article 1 of Protocol No. 1
(protection of property), he complained of the failure to enforce a
final judicial decision given in his favour in 2002 ordering the
setting-aside of two administrative permits authorising the
reconversion for commercial use of part of the building in which he
was living.
The
Court held, in particular, that by failing for six years to set aside
the permits in question the authorities had deprived the applicant’s
right of access to a court of all useful effect. Accordingly, it
held, unanimously, that there had been a violation of Article 6 § 1
and also found that there was no need to examine the complaints
lodged under Article 8 and Article 1 of Protocol No. 1.
It awarded Mr Niţescu EUR 5,000 in respect of non-pecuniary
damage and EUR 545 for costs and expenses. (The
judgment is available only in French).
Violation of Article 6 § 1 (fairness)
Tudor
Tudor v. Romania (no. 21911/03)
The
applicant, Tudor Tudor, is a Romanian national who was born in
1944 and lives in Bucharest. The case concerned Mr Tudor’s
complaint about the unfairness of proceedings against him for
recovery of possession of an apartment he had bought from the State.
He alleged in particular that the same domestic court had adopted
conflicting decisions in identical cases brought against other buyers
of apartments situated in the same building as his. The eviction
proceedings lodged by the former owner of the applicant’s
apartment were still pending before the domestic courts. Mr Tudor
relied on Article 6 § 1 (right to a fair
hearing), Article 1 of Protocol No. 1 (protection of
property) and Article 14 (prohibition of discrimination).
The Court
noted that, seven years after the adoption of the relevant domestic
law, its interpretation by the Romanian courts was still subject to
change and created continual uncertainty for Mr Tudor. The applicant
had therefore been deprived of a fair trial, in violation of
Article 6 § 1. The Court further held that there
was no need to examine the complaint under Article 14 together
with Article 6, and rejected Mr Tudor’s complaint that he
had been deprived of his property as it found that the domestic legal
system provided sufficient remedies to which he should have resorted
before applying to the European Court. Mr Tudor was awarded
EUR 5,000 in respect of non-pecuniary damage and EUR 2,200
for costs and expenses. (The judgment is available only in English.)
Violation of Article 6 § 1 (length)
Violation of Article 8
Violation of Article 13
Berková
v. Slovakia (no. 67149/01)
The
applicant, Jarmila Berková, is a Slovakian national who was
born in 1955 and lives in Poprad (Slovakia). The case concerned Ms
Berková’s complaint that, suffering from a mental
disorder which had resulted in a guardian being appointed for her, in
1999 the domestic courts refused to restore her full legal capacity
and decided that she was not allowed to make any further such request
for the next three years. She also complained in particular about the
excessive length of proceedings concerning her divorce, division of
matrimonial property and maintenance. She relied on Article 6 § 1
(right to a fair hearing within a reasonable time), Article 8
(right to respect for private and family life) and Article 13
(right to an effective remedy).
The Court
held unanimously that there had been a violation of Article 6 § 1
and Article 13 in respect of the excessive duration of the three sets
of proceedings at issue. The Court further held that there had been a
violation of Article 8 because Ms Berková had been
prevented for too long from applying to have her legal capacity
restored. (The judgment is available only in English.)
Press release issued by the Registrar
GRAND CHAMBER JUDGMENT
GOROU v. GREECE (No 2)
The
European Court of Human Rights has today delivered at a public
hearing its Grand Chamber judgment
in the case of Gorou v. Greece (No. 2) (application no.
12686/03).
The Court
held:
Under
Article 41 (just satisfaction), the Court awarded the applicant
4,000 euros (EUR) in respect of non-pecuniary damage and
EUR 2,300 for costs and expenses. (The
judgment is available in English and French.)
1. Principal
facts
The
applicant, Anthi Gorou, is a Greek national who was born in 1957 and
lives in Brussels. She is a civil servant in the Greek Ministry of
National Education and at the relevant time was working in Stuttgart
on secondment to the Bureau for the primary education of Greek
children abroad. On 2 June 1998 she filed a criminal complaint for
perjury and defamation against her immediate superior, with an
application to join the proceedings as a civil party. She accused her
superior of stating, in connection with an administrative
investigation opened against her, that she did not observe working
hours and did not get on well with her colleagues. On 26 September
2001, after hearing representations from the applicant in open court,
the Athens Criminal Court acquitted her former superior, finding that
the offending remarks had been truthful and that it had not been the
defendant’s intention to defame or insult her. The judgment was
finalised and entered in the court’s register on 5 August 2002.
On 24 September of that year the applicant requested the public
prosecutor at the Court of Cassation to lodge an appeal on points of
law against the judgment, alleging that it had not contained
sufficient reasoning. By means of a somewhat terse note, the public
prosecutor dismissed the request as unfounded.
2. Procedure
and composition of the Court
The
application was lodged with the European Court of Human Rights on
23 January 2003 and declared partly admissible on 14 February
2006.
In its
judgment of 14 June 2007, the Court held by four votes to three
that there had been no violation of Article 6 § 1 as
regards the allegation that the proceedings had been unfair, and
unanimously that there had been a violation of Article 6 § 1
as regards the length of the proceedings, namely more than four years
and three months for one level of jurisdiction.
On
14 September 2007 the applicant requested that the case be
referred to the Grand Chamber under Article 43
of the Convention and on 12 November 2007 the panel of the Grand
Chamber accepted that request. A public hearing was held in the Human
Rights Building, Strasbourg, on 11 June 2008.
Judgment
was given by the Grand Chamber of 17 judges, composed as follows:
Nicolas Bratza (the United Kingdom), President,
Christos
Rozakis (Greece),
Josep Casadevall
(Andorra),
Volodymyr Butkevych (Ukraine),
Vladimiro
Zagrebelsky (Italy),
Alvina Gyulumyan
(Armenia),
Khanlar Hajiyev (Azerbaijan)
Ljiljana Mijović
(Bosnia and Herzegovina),
Renate Jaeger (Germany),
David
Thór Björgvinsson (Iceland),
Ineta Ziemele
(Latvia),
Mark Villiger (Liechtenstein),
Isabelle
Berro-Lefèvre (Monaco),
Giorgio Malinverni
(Switzerland),
András Sajó (Hungary),
Zdravka
Kalaydjieva (Bulgaria),
Işıl Karakaş
(Turkey), judges,
and also Vincent Berger,
Jurisconsult.
3. Summary
of the judgment
Complaints
Relying on
Article 6 § 1, the applicant alleged, first, that the public
prosecutor’s decision dismissing her request for an appeal on
points of law had not been sufficiently reasoned and, second, that
the length of the proceedings had been excessive, contrary to the
“reasonable time” requirement.
Decision
of the Court
The
Government had contested the applicability of Article 6 § 1,
arguing that there had been no dispute (“contestation”)
over a civil right, within the meaning of that provision. The Court
dismissed that argument. First, it took the view that, although the
Convention did not confer any right to have third parties prosecuted
or sentenced for a criminal offence, the proceedings in which Mrs
Gorou had been a civil party had not only involved the right to a
good reputation but had also had an economic aspect, on account of
the sum – however symbolic – which the applicant had
claimed by way of damages. Secondly, the Court observed that it would
be more faithful to the reality of the domestic legal order to take
into consideration the well-established judicial practice whereby the
civil party could request the public prosecutor to appeal on points
of law. The Court found that the applicant’s request to the
public prosecutor at the Court of Cassation had been a logical part
of a challenge to the judgment in which her claim for compensation as
a civil party had been rejected and that there had thus still been a
dispute for the purposes of Article 6 § 1.
On the
merits, the Court reiterated its case-law to the effect that an
appellate court is not necessarily required to give very detailed
reasoning when it decides on the admissibility of an appeal on points
of law. In the applicant’s case, it took the view that the
public prosecutor did not have a duty to justify his decision, which
would have placed on him an additional burden that was not imposed by
the nature of the request, but only to give a response to the civil
party. Accordingly, the Court found that there had been no violation
of Article 6 § 1 of the Convention in respect of the
complaint that the decision lacked reasoning. However, the Court
confirmed the Chamber’s finding of a violation in respect of
the excessive length of the proceedings.
Judges
Zagrebelsky, Hajiyev, Jaeger, Björgvinsson, Villiger and
Berro-Lefèvre expressed a separate opinion. Partly dissenting
opinions were expressed by Judges Casadevall, Kalaydjieva and
Malinverni, the latter being joined by Judge Sajó. These
opinions are appended to the judgment.
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