Fuente: © Council of Europe
http://www.coe.int/

Chamber judgments concerning France, Lithuania, Moldova, Poland, Portugal, Slovakia, Turkey and United Kingdom

/noticias.info/ The European Court of Human Rights has yesterday notified in writing the following 13 Chamber judgments, none of which is final.1

Repetitive cases2 and length-of-proceedings cases, with the Court’s main finding indicated, can also be found at the end of the press release.

Ong v. France (no. 348/03) Violation of Article 6 § 1 (fairness)
The applicant, Kieng Ong, is a French national who was born in 1958 and lives in Aubervilliers (France). He was the manager of a private limited company which, in particular, operated an Asian catering business.

The company was found to have been concealing profits and faced tax deficiency assessments. This gave rise to various sets of proceedings, and in particular in the commercial court, which ruled that the applicant was personally liable on account of the serious mismanagement on his part that had resulted in the tax re-assessments. He was thus ordered to pay the company the sum of approximately 640,438 euros (EUR) in damages. The judgment was upheld on appeal.

The applicant appealed on points of law to the Court of Cassation. By an order of 15 March 2000 his appeal was struck out of the list pursuant to Article 1009-1 of the Code of Civil Procedure, on the ground that he had not complied with the judgment of the Court of Appeal.

The applicant complained, in particular under Article 6 (right to a fair hearing), that the striking-out of his appeal on points of law had breached his right of access to the Court of Cassation and thus his right to an effective remedy.

The European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 and awarded the applicant EUR 7,000 for non-pecuniary damage. (The judgment is available only in French)

Violation of Article 1 of Protocol No. 1
Jurevičius v. Lithuania (no. 30165/02) Violation of Article 6 § 1 (fairness)
The applicant, Jurgis Jurevičius, is a Lithuanian national who was born in 1941 and lives in Vilnius.

On 5 February 1999 Kaunas City District Court ordered the local authorities to return property, or its equivalent in compensation, to the applicant in accordance with the relevant 1991 legislation on the restitution of property rights. The two flats which the applicant inherited from his parents had been nationalised during the Soviet occupation of Lithuania in the 1940s. The judgment was partially enforced on 27 November 2003.

The applicant complained, in particular, that the authorities failed to execute the court decision of 5 February 1999 fully and in a timely manner. He relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property).

The European Court of Human Rights noted that the final court decision of 5 February 1999 was never enforced with regard to one of the applicant’s properties and that the part relating to the other property was executed after a delay of more than four years.

The Court accordingly held, unanimously, that there had been a violation of Article 1 of Protocol 1 and Article 6 § 1 of the Convention. It also held that the Lithuanian State should enforce the remainder of the judgment of 5 February 1999 and pay Mr Jurevičius EUR 6,000 for non-pecuniary damage. The remainder of the application was declared inadmissible. (The judgment is available only in English.)

Melnic v. Moldova (no. 6923/03) Violation of Article 6 § 1 (fairness)
The applicant, Galina Melnic is a Moldovan national who was born in 1948 and lives in Rezina, Moldova.

On 14 September 2001 Buiucani District Court ordered the Ministry of Finance to pay her compensation for the late enforcement of a previous judgment awarding her a lump sum, to which she was entitled as the widow of the former President of the Rezina District Court. The Ministry appealed.

On 5 February 2002 Chişinău Regional Court dismissed the Ministry’s appeal and upheld the judgment of 14 September 2001. Since the Ministry did not lodge an appeal in cassation within 15 days, the judgment of 5 February 2002 became final.

On 8 April 2002, 47 days after the expiry of the legal time-limit, the Ministry lodged an appeal in cassation, without providing any reasons for the failure to observe the time limit. The Court of Appeal upheld the Ministry’s appeal in cassation, quashed the judgments in favour of the applicant and reduced the amount of compensation for inflation. The Court of Appeal did not give any reason for accepting the appeal in cassation lodged out of time.

The applicant alleged, in particular, that her right to a fair hearing was breached as a result of the failure of the Court of Appeal to give any reasons for extending the time-limit for lodging an appeal. She relied on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1.

The Court noted, in particular, that the Ministry’s representative did not provide any reasons for the Ministry’s failure to observe the legal time-limit for lodging the appeal and that the Court of Appeal did not examine the issue of the extension of the time-limit or give any reasons for its decision.

The Court observed, as it had already found in a similar situation in another case, that, by not giving any reasons for extending the defendant’s time-limit for lodging a procedural act, the domestic courts breached the applicant’s right to a fair hearing. It therefore held unanimously that there had been a violation of Article 6 § 1.

The Court held that it was not necessary to examine the applicant’s other complaints and awarded Mrs Melnic EUR 21,007 for pecuniary damage and EUR 2,000 for non-pecuniary damage. (The judgment is only available only in English.)

Osuch v. Poland (no. 31246/02) Violation of Article 5 § 3
The applicant, Piotr Osuch, is a Polish national who was born in 1976 and lives in Warsaw.

The applicant was arrested on 10 March 1999 and detained until 16 January 2002 when Warsaw District Court convicted him of robbery and extortion committed in an organised criminal group.

The applicant complained about the length of his pre-trial detention. He relied on Article 5 § 3 (right to liberty and security).

The Court held unanimously that there had been a violation of Article 5 § 3 and awarded the applicant EUR 1,000 in respect of non-pecuniary damage. (The judgment is available only in English.)

Skibińscy v. Poland (no. 52589/99) Violation of Article 1 of Protocol No. 1
The applicants, Urszula Skibińscy and Henryk Skibińscy, are Polish nationals who live in Częstochowa where they owned a number of plots of land.

In 1979 a local land development plan was adopted which concerned the applicants’ land. In 1991 and 1992 the applicants, who had applied for planning permission, received initial approval to build on their land. However, in 1994 changes were made to the development plan, providing for a major roadway to be built in the vicinity of their plots. However, it was not envisaged to provide financing for the construction until at least 2010. The applicants’ subsequent requests to obtain definitive construction permits were refused.

The 1979 local development plan expired on 31 December 2003 and no new plan was adopted thereafter. Urszula Skibińscy was subsequently granted building permission in April 2004. Henryk Skibińscy had died, in the meantime.

The applicants complained that they have not been able to use their plot for construction purposes for the last 20 years. They alleged that their right to the peaceful enjoyment of property had been breached since the land they owned had been designated for expropriation at some undetermined future date. As a result, they had been refused final construction permits and under domestic legislation were not entitled to any compensation for that interference with their ownership. They relied on Article 1 of Protocol No. 1 (protection of property).

The Court considered that there were no reasonable grounds on which to believe that the 1979 plan would be realised in any foreseeable future. It noted, in particular, that funds for the financing for the construction of the roadway were not forecasted to be available until at least 2010. It could therefore not be said that preventing the applicants disposing of their land served any purpose which would be realisable in some reasonably near future, in the interest of the community. Furthermore, that state of affairs lasted a long time - at least from 1994 when the municipality started proceedings to amend the 1979 plan until the end of December 2003 when the plan expired.

In addition, under laws applicable before 1 January 1995 the applicants were not entitled to any compensation for the fact that they could not use their land freely. It was only by virtue of the Local Planning Act 1994 that a right to compensation became available to owners to be expropriated in the future. However, the right to compensation applied only to plans adopted after 1 January 1995.

The Court noted that the 1994 Act was intended to improve the situation of owners to be expropriated in the future in that certain right to compensation entitlements were foreseen for them for the first time in Polish law. However, when enacting the 1994 Act, the legislature on the one hand introduced compensatory provisions into law, but at the same time excluded the application of those provisions in respect of plans adopted before 1 January 1995. What was more, the legislature subsequently prolonged this situation on three occasions, for an overall period of nine years. Consequently, until July 2003, the applicants could not make any claim for compensation against the municipality in respect of their particular situation. As a result, throughout that period, the applicants did not have any effective entitlement to compensation under domestic law for the fact that they could not put their property to any use.

The Court observed that the difficulties in enacting a comprehensive legal framework in the area of urban planning constituted part of the process of transition from a socialist legal order and its property regime to one compatible with the rule of law and the market economy – a process which, by the very nature of things, was fraught with difficulties. However, those difficulties and the enormity of the tasks facing legislators having to deal with all the complex issues involved in such a transition did not exempt the Member States from the obligations stemming from the European Convention on Human Rights or its Protocols.

The Court was of the view that a fair balance had not been struck between the competing general and individual interests and that the applicants had had to bear an excessive individual burden. It therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1.

It reserved the application of Article 41 concerning pecuniary and non-pecuniary damage to a later date. The Court awarded the applicants EUR 1,647 for costs and expenses. (The judgment is available only in English.)

Gregório de Andrade v. Portugal (no. 41537/02) Violation of Article 6 § 1 (fairness)
José Pedro Gregório de Andrade was a Portuguese national who was born in 1931. After his death in 2004, his son requested leave to continue the proceedings before the Court.

The applicant worked as an official in the Benguela Railway Company (the “CFB”) which operated in Angola when it was a Portuguese colony. On his return to Portugal after Angolan independence, the applicant, who continued working in Portugal until late 1993, was incorporated into the general pension system. His old-age pension was fixed at EUR 239 in 1994.

State Counsel brought proceedings on the applicant’s behalf seeking to secure for him the same benefit as that granted to former colleagues of his, namely a re-calculation of his pension to take into account the more advantageous rate of the CFB pension fund. That request was dismissed on appeal by the Supreme Administrative Court, even though it had allowed similar claims by former colleagues of the applicant. When State Counsel sent him a copy of the judgment of the Supreme Administrative Court it had already become unappealable, as the statutory deadline for entering an appeal to harmonise case-law had expired.

The applicant alleged that he did not have proper access to a court, in view of the fact that he had been notified too late, by State Counsel acting on his behalf, of the decision of the Supreme Administrative Court, and that that had prevented him from lodging an appeal with the full court to obtain a decision in line with the case-law. He relied on Article 6 § 1 (right to a fair hearing), Article 14 (prohibition of discrimination) and Article 1 of Protocol No. 1 (protection of property).

The Court held unanimously that there had been a violation of Article 6 § 1 and considered that it did not need to deal separately with the claims under Article 14 and Article 1 of Protocol No. 1. By way of just satisfaction, the Court awarded the applicant’s son EUR 1,000 in respect of non-pecuniary damage and EUR 4,235 for costs and expenses, less the sum of EUR 701 already received by way of legal aid from the Council of Europe. (The judgment is available only in French)

Violation of Article 14 (tax allowance)
No violation of Article 14 (Widow’s Pension)
Hobbs, Richard, Walsh and Geen v. United Kingdom (nos. 63684/00, 63475/00, 63484/00 and 63468/00)
The applicants are Thomas William Hobbs who was born in 1921 and lives in Southampton, Ian Richard who was born in 1957 and lives in Dunfermline, Paul Walsh who was born in 1955 and lives in London and David Nigel Geen who was born in 1958 and lives in Maidenhead. They are all British nationals.

All the applicants were widowed in the mid to late nineties.

They complained about the United Kingdom authorities’ refusal to grant them widow’s bereavement allowance or equivalent on the grounds of their sex. They relied on Article 14 (prohibition of discrimination) and Article 1 of Protocol No. 1 (protection of property).

The Court did not consider that, during the period when the applicants were denied the allowance, the difference in treatment between men and women as regards the Widow’s Bereavement Tax Allowance was reasonably and objectively justified. It therefore held, unanimously, that there had been a violation of Article 14 in conjunction with Article 1 of Protocol No. 1 in the cases of Hobbs, Richard and Walsh.

The applicants in Walsh, Geen and Richard complained in addition about the non-payment to them of Widow’s Pension and, initially, about the non-payment of Widow’s Payment and Widowed Mothers’ Allowance.

The Court noted that parties reached a friendly settlement as regards the claims for Widow’s Payment and Widowed Mother’s Allowance and struck out those parts of the applications. It found no violation in respect of the applicants’ claims for Widow’s Pension in Richard and Walsh’s, and adjourned its consideration of the claim for Widow’s Pension in the case of Geen.

The Court rejected the applicants’ claims for pecuniary and non-pecuniary damages and awarded the applicants in Richard and Walsh EUR 800 each, for costs and expenses. (The judgment is available only in English).

Repetitive cases

In the following cases the Court has reached the same findings as in similar cases raising the same issues under the Convention:

Violations of Article 6 § 1 (length) and (fairness)
Assad v. France (application no. 66500/01) Violation of Article 13
The applicant, Eric Assad, is a French national who was born in 1955 and lives in Clermont-Ferrand (France).

From 1980 to 1986 he was confined in mental hospitals in Saint-Avé and Sarreguemines. He lodged appeals against the decisions concerning his confinement and sought damages.

The applicant complained in particular, under Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy), of the length (13 years and two months, 12 years and one month, 12 years and nine months) and unfairness of the proceedings to which he had been a party and of the lack of an effective remedy under French law by which to complain about the length of those proceedings.

The Court held unanimously that there had been a violation of Article 6 § 1 on account of the excessive length of those three sets of proceedings. It further held, unanimously, that Article 13 had been breached because there had been no remedy under French law by which the applicant could have, at the time the application was lodged, asserted his right to a hearing within a reasonable time. Lastly, the Court held unanimously that there had been a violation of Article 6 § 1 on account of the presence of Government Commissioners at the deliberations of the court which ruled on the applicant’s appeals.

By way of just satisfaction, the Court awarded the applicant EUR 15,000 in respect of non-pecuniary damage and EUR 500 for costs and expenses. (The judgment is available only in French)

Louis v. France (application no 44301/02) Violation of Article 6 § 1 (fairness)
The applicant, Michel Louis, is a French national who was born in 1944 and lives in Paris. He served as lieutenant-colonel in charge of the centre known as “Informatique 1” (Information Technology 1) from 1988 to 1991, later heading the logistics support centre of the Telecommunications Research and Production Division.

In 2000 he was found guilty of acquiring or retaining a prohibited interest and of forgery. He was given a three-month suspended prison sentence and fined the equivalent of EUR 15,244.90. He lodged an appeal with the Court of Cassation but it was dismissed in June 2001.

The applicant complained under Article 6 § 1 (right to a fair trial) that the proceedings before the Court of Cassation had been unfair, in particular because the reporting judge’s report had not been sent to him or his lawyer prior to the hearing, whereas State Counsel had received a copy.

The Court held unanimously that there had been a violation of Article 6 § 1. As the applicant had not submitted any claim for just satisfaction within the time allowed, the Court considered that no award should be made to him under Article 41. (The judgment is available only in French)

Violation of Article 6 § 1 (fairness)
Braga v. Moldova (no. 74154/01)
The applicant is a Moldovan national.

The applicant complained, in particular, that the quashing of a final judgment in his favour had breached Article 6 § 1 (right to a fair hearing).

The Court noted that a final and binding judgment in the applicant’s favour were set aside by a higher court in supervisory review proceedings, following an application by a public prosecutor, whose power to make such applications was not subject to any time-limit, so that judgments were liable to challenge indefinitely.

As a result, the applicant had had to endure legal uncertainty for a long period after the final judgment was quashed. There had therefore been a breach of the principle of legal certainty and of the right of access to a court in the applicants’ cases. The Court therefore held, unanimously, that the setting aside of the judgment in supervisory review proceedings violated Article 6 § 1. It also found that it was unnecessary to examine the applicant’s other complaints.

The Court awarded the applicant EUR 1,767 for pecuniary damage, EUR 2,000 for non-pecuniary damage and EUR 600 for costs and expenses. (The judgments are available only in English.)

Violation of Article 1 of Protocol No. 1
Tuncay and Others v. Turkey (nos. 11898/03, 11899/03, 11900/03, 11901/03, 11902/03, 11903/03, 11904/03, 11907/03, 11908/03, 11909/03, 11910/03, 11912/03 and 11913/03)
In these Turkish cases, the 29 applicants complained, under Article 1 of Protocol No. 1 (protection of property), of delays in the payment of additional compensation for expropriation.

The Court held unanimously that there had been a violation of Article 1 of Protocol No. 1. It considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicants and awarded them a total of EUR 331,568 for pecuniary damage and EUR 6,500 for costs and expenses. (The judgment is available only in French)

Length-of-proceedings cases

In the following cases the applicants complained, in particular, under Article 6 § 1 (right to a fair hearing within a reasonable time), of the excessive length of civil proceedings. The remainder of the applications were declared inadmissible.

Violation of Article 6 § 1 (length)
Drabicki v. Poland (no. 15464/02)
Vozár v. Slovakia (no. 54826/00)

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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).

Press contacts
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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.
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.
2 In which the Court has reached the same findings as in similar cases raising the same issues under the European Convention on Human Rights.
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