EVRM-Hof veroordeelt Oostenrijk na beroep homosexuele veroordeelden, en België voor onregelmatigheden in de rechtgang (en)

 

The European Court of Human Rights has today notified in writing the following six Chamber judgments, none of which are final [1].

Violation of Article 14

H.G. and G.B. v. Austria (application no. 11084/02)

The applicants, H.G. and G.B., are Austrian nationals.

They were both convicted under Article 209 of the Criminal Code - which criminalised homosexual acts of adult men with consenting adolescents between the ages of 14 and 18 - for having committed homosexual acts with male minors in 2001 and 1998 respectively. H.G. was convicted on 3 December 2001 and sentenced to 18 months' imprisonment. He was imprisoned from 6 December 2001 until 1 September 2002, having been granted early release. G.B was convicted on 25 September 2000 and received a suspended prison sentence of three months.

The applicants complained of the maintenance in force of Article 209 and of their convictions under that provision. Relying on Article 8 (right to respect for private and family life) of the European Convention on Human Rights taken alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention, they alleged that their right to respect for their private life had been violated and that the contested provision was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable.

The parties agreed that the subsequent repeal of Article 209 had not changed the applicants' position; their convictions still stood and they had no right to any form of compensation. In particular, H.G. had no right to compensation for the period of one year he had spent in detention.

Observing that the case raised the same issue as L. and V. v. Austria, the European Court of Human Rights again held, unanimously, that there had been a violation of Article 14 taken in conjunction with Article 8, on the ground that the Government had not offered convincing and weighty reasons justifying the maintenance in force of Article 209 and, consequently, the applicants' convictions under that provision. It also found that it was not necessary to rule on the question whether there had been a violation of Article 8 taken alone.

The Court held, by five votes to two, that Austria was to pay H.G. 75,000 euros (EUR) for non-pecuniary damage and EUR 5,107.90 for costs and expenses. The Court held, unanimously, that Austria was to pay G.B. EUR 15,000 for non-pecuniary damage and EUR 11,424.37 for costs and expenses. (The judgment is available only in English.)

Cottin v. Belgium (no. 48386/99) Violation of Article 6 § 1

The applicant, Tony Cottin is a Belgian national who was born in 1972 and lives in Profondeville (Belgium).

Following an assault in December 1993 the applicant was summoned to appear before Namur Criminal Court on charges of assault and aggravated assault. A hearing, which the applicant did not attend, was held before a medical expert whom the court had asked to describe the injuries sustained by one of the three victims and to assess the loss.

In a judgment of 27 November 1997, in which it noted that the medical expert had found that one of the victims had been permanently disabled as a result of the assault, Liège Court of Appeal gave the applicant a two-year suspended prison sentence and ordered him to pay a fine. An appeal by the applicant to the Court of Cassation was dismissed on 24 November 1998.

The applicant complained under Article 6 § 1 (right to a fair trial) that the proceedings before the medical expert had not been adversarial. He also submitted that the one-sided nature of those proceedings had violated Article 14 (prohibition of discrimination).

The Court noted that the applicant had been able to lodge observations with the Court of Appeal on the tenor and findings of the medical expert's report. However, it was not satisfied that he had thereby been afforded a proper opportunity to make effective comments on that report, since the question the medical expert was required to answer, namely the extent of the physical damage caused by the assault, overlapped with one of the issues the Court of Appeal had to decide when determining the classification of the alleged acts under criminal law.

Since the applicant had been prevented from taking part in the proceedings before the expert, there had been no opportunity for him, his counsel or medical adviser to cross-examine the witnesses who had appeared before the expert, to submit observations on the materials and information that had been before the expert or to ask the expert to make further inquiries. The applicant had thus been deprived of the opportunity to comment on a crucial piece of evidence. In those circumstances, the Court held by four votes to three that there had been a violation of Article 6 § 1 and that no separate question arose under Article 14.

The Court awarded the applicant EUR 1,250 for pecuniary damage and EUR 1,735 for costs and expenses. (The judgment is available only in French.)

Goktepe v. Belgium (no. 50372/99) Violation of Article 6 § 1

The applicant, Umit Goktepe, is a Turkish national who was born in 1975 and is currently in prison in Belgium.

He was committed with two others to stand trial in the Assize Court in connection with a robbery in December 1996 that had resulted in the victim's death. Throughout the investigation, he denied hitting the victim and said that the blows had been struck by a codefendant, who had in fact confessed.

The judges of the East Flanders Assize Court compiled a list of six questions to put to the jury. In the judges' view, the aggravating circumstances - the assault that had led to the victim's death - applied to all those who had taken part in the robbery, irrespective of whether they were proved to have participated in the assault, homicide or murder. Accordingly, despite the applicant's objections, three questions were put to the jury on the subject of aggravating circumstances which made no distinction between the defendants. The jury answered the questions in the affirmative and on 27 November 1998 the three defendants were convicted and sentenced to 30 years' imprisonment.

The applicant appealed to the Court of Cassation arguing that his implication in the alleged offences should have been assessed separately, which meant that the questions to the jury should have referred to each defendant individually. The Court of Cassation dismissed his appeal on 16 February 1999.

The applicant complained under Article 6 § 1 (right to a fair trial) of procedural unfairness. He further complained under Article 6 § 2 (presumption of innocence) that he had been convicted without proof of his implication in the acts that constituted aggravating circumstances.

The Court noted that, as a result of the Assize Court's refusal to formulate the questions on the issue of aggravating circumstances individually, the jury had been forced to answer them in respect of all three defendants, without deciding whether the applicant had individual criminal liability. An affirmative answer to those questions entailed an automatic substantial increase in sentence.

For a court not to take into account arguments on a vital issue that entailed such severe consequences was incompatible with adversarial process and therefore contrary to the notion of a fair trial. That conclusion was particularly founded in the case before the Court since, as the members of the jury could not give reasons for their decision, the only means of adequately compensating for the laconic answers they were obliged to give was to ensure that the questions put to them were precise.

Since the applicant had not been able to exercise his defence rights in a practical and effective manner with respect to a decisive issue, the Court unanimously held that there had been a violation of Article 6 § 1. It considered that no separate question arose under Article 6 § 2.

The Court awarded the applicant EUR 3,000 for non-pecuniary damage and EUR 3,549 for costs and expenses, less EUR 685 he had already received from the Council of Europe. (The judgment is available only in French.)

Violation of Article 6 § 1

Violation of Article 13

Nafpliotis v. Greece (no. 22029/03)

Nikolopoulos v. Greece (no. 21978/03)

The applicants, Michaïl Nafpliotis and Nikolaos Nikolopoulos, are Greek nationals who were born in 1934 and 1932 and live in Athens and Amaliada (Greece). They have both retired from their jobs with the Hellenic Railways Organisation.

They complained under Article 6 § 1 (right to a fair hearing within reasonable time) of the length of administrative procedures they had brought against the Social-Security Department for compensation following an error in the calculation of their pension contributions. They also complained under Article 13 of the lack of an effective remedy for the delays.

The Court held unanimously in both cases that there had been violations of Articles 6 § 1 and 13 and awarded each applicant EUR 1,500 for non-pecuniary damage and EUR 500 for costs and expenses. (The judgments are available only in French.)

Znamenskaya v. Russia (no. 77785/01) Violation of Article 8

The applicant, Natalya Vasilyevna Znamenskaya, is a Russian national, born in 1955 and living in Moscow. On 4 August 1997, she gave birth to a stillborn baby boy and decided to bury him. The stillbirth was registered under her ex-husband's name from whom she had been divorced since March 1997. The applicant refused to put her former husband's surname on the stillborn child's tombstone and left it empty.

The applicant submitted that the child's biological father was Mr G. and that they had been living together as man and wife since 1994. They could not, however, file a joint declaration establishing the child's paternity because Mr G. had been placed in a detention facility on 20 June 1997 and died in custody there on 12 October 1997.

On 10 August 2000 the applicant requested Chertanovskiy District Court of Moscow to establish Mr G.'s paternity in respect of the stillbirth and amend the child's surname and patronymic name accordingly. In Russian, patronymic names are normally formed from the father's forename and a special ending, -ovich for sons or -ovna for daughters.

On 16 March 2001 the district court ordered the discontinuation of the proceedings because the stillborn child had not acquired civil rights and the relevant provisions of the Family Code only applied to living children. The applicant appealed unsuccessfully.

The applicant complained under Article 8 (right to respect for private and family life) of the Convention that the domestic courts had not considered her claim.

The European Court of Human Rights found that Article 8 was applicable in the case. Bearing in mind that the applicant must have developed a strong bond with the embryo whom she had almost brought to full term and that she expressed the desire to give him a name and bury him, the establishment of his descent undoubtedly affected her "private life", the respect for which was guaranteed by Article 8.

The Court observed that the existence of a relationship between the applicant and Mr G. was not disputed. Nor had anyone contested Mr G.'s paternity in respect of the stillborn child. As the child was stillborn, the establishment of its paternity did not impose a continuing obligation of support on anyone involved. It appeared therefore that there were no interests conflicting with those of the applicant.

In refusing the applicant's claim, the domestic courts did not refer to any legitimate or convincing reasons for maintaining the status quo. Moreover, the Russian Government had accepted that the domestic courts erred in dealing with the claim in terms of the child's civil rights, without due regard for the rights of the applicant. The Government had also conceded that, under the applicable family-law provisions, the claim should have been granted.

According to the Court's case-law, the situation where a legal presumption was allowed to prevail over biological and social reality, without regard to both established facts and the wishes of those concerned and without actually benefiting anyone, was not compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective "respect" for private and family life. The Court therefore held, by four votes to three, that there had been a violation of Article 8. The Court awarded the applicant EUR 1,000 for non-pecuniary damage. (The judgment is available only in English).

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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 ).

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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. 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.