EVRM-hof veroordeelt Bulgarije, Roemenië, Rusland en Turkije voor ongeregeldheden in de rechtsgang (en)

The European Court of Human Rights has today notified in writing the following 27 Chamber judgments, none of which are final [1].

Repetitive cases (in which the Court has reached the same findings as in similar cases raising the same issues under the European Convention on Human Rights) can be found at the end of this press release.

Mihailov v. Bulgaria (application no 52367/99) Violation of Article 6 § 1

The applicant, Boris Kostov Mihailov, is a Bulgarian national who was born in 1933 and lived in Sofia. He died on 16 April 2001. His son and daughter, Kostik Borisov Mihailov and Eleonora Borisova Mihailova, continued the proceedings on their father's behalf.

On 27 November 1989 the Labour Expert Medical Commission (LEMC) specialising in pulmonary diseases diagnosed the applicant as suffering from asbestosis and various other diseases and classified his disability as second degree. The applicant's health deteriorated and on 21 May 1998 another LEMC reclassified his disability as first degree, as he needed another person's assistance.

On 18 June 1998 the Central Labour Expert Medical Commission at the Ministry of Health overturned the decision of 21 May 1998 again classifying the applicant's disability status as second degree. Mr Mihailov appealed to the Supreme Administrative Court, arguing that the reclassification affected the amount of disability pension to which he was entitled. On 6 October 1998 a three member panel of the Supreme Administrative Court found that the decision was not subject to judicial review and declared the appeal inadmissible.

Mr Mihailov complained about the Supreme Administrative Court's refusal to examine his appeal, relying on Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights.

The European Court of Human Rights held that the commissions could not be regarded as tribunals as they did not satisfy a series of procedural and structural guarantees. It therefore found that their decisions should have been subject to review by a judicial body with full jurisdiction. However, the Court noted that the Supreme Administrative Court expressly refused to examine the applicant's appeal against the decision of the CLEMC of 18 June 1998, citing the provisions of several statutory instruments, which apparently excluded judicial review of such decisions. Neither that court in its reasoning, nor the Government in their observations, had sought to justify this restriction on the applicant's right of access to a court. It was noteworthy in that connection that, only a month later, the Supreme Administrative Court had changed its case law and started examining such appeals. The Court therefore found that there had been a violation of Article 6 § 1 of the Convention.

The Court awarded the applicant's heirs 2,000 euros (EUR) for non-pecuniary damage and EUR 950 for costs and expenses. (The judgment is available only in English.)

Amassoglou v. Greece (no. 40775/02) Violation of Article 6 § 1

The applicant, Demetrios Amassoglou, is a Greek national who lives in Salonika (Greece).

He complained of the length of criminal proceedings in which he was sentenced to three months' imprisonment for defamation and one month's imprisonment for insulting and threatening behaviour and attempted assault. He relied on Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention.

The Court observed that the proceedings in question, which had started when the prosecution was initiated on 6 July 1994 and had ended when the Court of Cassation gave judgment on 15 May 2002, had lasted seven years and more than ten months. Having regard to the circumstances of the case, the Court considered that such a period was excessive and did not satisfy the "reasonable-time" requirement. It therefore held unanimously that there had been a violation of Article 6 § 1 of the Convention and awarded the applicant EUR 3,000 for non-pecuniary damage. (The judgment is available only in French.)

Violation of Article 1 of Protocol No. 1

Străin and Others v. Romania (no. 57001/00) Violation of Article 6 § 1

The applicants, Delia Străin, her brother Horia Stoinescu, Felicia Stoinescu and Maria Tăucean, are Romanian nationals who were born in 1914, 1920, 1921 and 1945 respectively. Mrs Străin lives in Timişoara (Romania), Mr Stoinescu in Delémont (Switzerland) and Mrs Stoinescu and Mrs Tăucean in Arad (Romania).

Mrs Străin, Mr Stoinescu and their late brother - of whom Mrs Stoinescu and Mrs Tăucean are heirs - owned a house in Arad which the State nationalised in 1950. In 1993 they brought an action for recovery of possession, seeking a declaration that the nationalisation had been unlawful and the return of the building in question, which the State had in the meantime converted into four flats let out to private individuals. In 1996 the tenants indicated that they wished to purchase the flats they were occupying.

Although it had been informed that an action for recovery of possession was pending, the State-owned company which managed the property decided to accept one of the offers and sold the flat concerned to an internationally renowned former footballer. The applicants sought to have the contract of sale declared void, but were unsuccessful. In a judgment of 30 June 1999 the Timişoara Court of Appeal held that the nationalisation had been unlawful and that the applicants were still the lawful owners of the property but dismissed their application to have the sale of the flat declared void.

Relying on Article 1 of Protocol No. 1 (protection of property), the applicants submitted that the sale of their flat to a third party without any compensation had infringed their right to the peaceful enjoyment of their possessions. In addition, relying on Article 6 § 1 (right to a fair hearing within a reasonable time), they complained, among other things, of the length of the proceedings in question.

The Court observed that Romanian law did not foresee with sufficient clarity and certainty the consequences for individuals' property rights of the sale of their property by the State to a third party acting in good faith; there was no indication whether owners should be compensated in such circumstances or how. The Romanian Government had not cited any exceptional circumstances justifying the non-payment of compensation to the applicants.

Furthermore, the State had sold the property despite the fact that the applicants had brought an action against it on the ground that the nationalisation had been wrongful, and despite its refusal to sell the other flats in the same building. Such an approach could not be justified on any public-interest grounds, had given rise to discrimination between the various tenants wishing to purchase their flats and had been likely to undermine the effectiveness of the courts to which the applicants had applied.

Given the manner in which the taking of their property had interfered with the fundamental principles of non-discrimination and the rule of law, the total lack of compensation meant that the applicants had had to bear a disproportionate and excessive burden incompatible with the right to respect for the peaceful enjoyment of possessions. The Court therefore held by six votes to one that there had been a violation of Article 1 of Protocol No. 1.

The Court further noted that the proceedings in question had lasted almost ten years, of which it could take into account only the period of approximately five years since the Convention had come into force in respect of Romania on 20 June 1994. Having regard to the circumstances of the case, it considered that such a period was excessive and did not satisfy the "reasonable-time" requirement. The Court therefore held unanimously that there had been a violation of Article 6 § 1 of the Convention.

The Court held unanimously that Romania had to return the building in question to the applicants within three months of the date on which the judgment became final. Failing that, the Government would have to pay them EUR 80,000 for pecuniary damage. The Court also awarded them jointly EUR 5,000 for non-pecuniary damage and EUR 1,600 for costs and expenses. (The judgment is available only in French.)

Rytsarev v. Russia (no. 63332/00) No examination on the merits

The applicant, Vladimir Ivanovich Rytsarev, is a Russian national, who was born in 1956 and lives in Zhdimir (Oryol Region of Russia).

On 8 July 2000 he was arrested and detained in a cell at the Znamenskiy District Police Station in the village of Znamenskoye of the Oryol Region.

On 9 July 2000 the applicant lodged a complaint with an investigator of the Znamenskiy District Police Department, seeking to have the lawfulness of his arrest and detention challenged before Znamenskiy District Court and requesting that he be released. The complaint was never sent to the court.

On 11 July 2000 the applicant was charged with theft and, on 13 July 2000, he was transferred to another detention facility. He was released on 5 September 2000.

On 12 September 2003 criminal proceedings against the applicant were discontinued as the prosecution service had dropped the charges against him.

The applicant brought proceedings for compensation and, on 23 April 2004, was awarded 30,000 Russian roubles (RUR) for non pecuniary damage. According to the Russian Government, the applicant was paid on 25 October 2004, which the applicant has not denied.

The applicant maintained that he was given no water or food during his detention at Znamenskiy district police station. Neither was he taken out for exercise or permitted to go to a lavatory as frequently as he needed. The Russian Government claimed that the applicant received daily meals at lunchtime and was taken regularly to the toilet.

The applicant complained that his application for release was not examined speedily and about the conditions of his detention, relying on Article 5 § 4 (right to liberty and security) and 3 (prohibition of inhuman or degrading treatment).

After the case was declared admissible by the European Court of Human Rights, the Government submitted that Zheleznodorozhniy District Court of Oryol had acknowledged in a judgment of 23 April 2004 that there had been a violation of the applicant's rights as guaranteed by Articles 3 and 5 and awarded compensation for non-pecuniary damage. The Government concluded that the applicant's rights were therefore restored and invited the Court to discontinue the examination of the complaint.

The European Court of Human Rights noted that the district court had based its finding on a thorough examination of the applicant's complaints of ill treatment and the evidence produced by both parties. The district court acknowledged, in substance, a violation of the applicant's rights as guaranteed under Article 3, in that he had not been given food for five days during his detention. The Court considered that, by awarding the applicant the compensation in question, the district court offered appropriate and sufficient redress. He could, therefore, no longer claim to be a victim of a violation of Article 3.

The Court noted that the Russian Government had acknowledged that the applicant's complaint of 9 July 2000 about the unlawfulness of his detention was never forwarded to a court, in breach of domestic law. The Government informed the Court that it had been pointed out to the head of the Znamenskiy District Police Investigation Department that such violations were intolerable.

The Court further noted that the damages awarded by the judgment of 23 April 2004 related, among other things, to the fact that the applicant had been held unlawfully in custody for 56 days until 5 September 2000.

Accepting the Russian Government's view that the violations in question had been remedied at domestic level, the Court held, unanimously, that the applicant had lost his status as a victim for the purposes of Article 34 (right of individual petition) and that it was unable to take cognisance of the merits of the application. (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:

Violation of Article 6 § 1

Natalya Gerasimova v. Russia (no. 24077/02) Violation of Article 1 of Protocol No. 1

Yavorivskaya v. Russia (no. 34687/02)

Natalya Nikolayevna Gerasimova is a Russian national who was born in 1942 and lives in Moscow. Natalya Alimpiyevna Yavorivskaya is a Ukranian national who was born in 1965 and lives in Ternopil (Ukraine). From 1996 to 2000 Ms Yavorivskaya and her family lived and worked in the Chukotka Region in the Russian Federation.

Natalya Gerasimova

In June 2001 the applicant was advised by the Housing Policy Department of the North-Eastern Administrative District Council that the building in which she owned a flat had been scheduled for demolition. She was offered a substitute flat in a remote area of Yuzhnoye Butovo, which she turned down. On 27 September 2001 Babushkinskiy District Court of Moscow ordered the applicant's eviction from her old flat, transferring title to the flat to the district council and ordering that she be given title to the new flat. On 2 April 2002, she was relocated to the new flat, but the part of the judgment requiring the transfer of title to the new flat was never enforced.

Yavorivskaya

In the winter of 1998 Ms Yavorivskaya fell ill and was hospitalised in Bilibino. The local doctors failed to diagnose her illness correctly and her health was seriously damaged as a consequence. She subsequently brought a medical malpractice suit against the municipal health protection institution, Bilibino Central District Hospital. On 21 February 2000 she was awarded RUR 60,000 (EUR 2,109). However, the judgment of 21 February was never enforced on the ground that the hospital had no funds. Ultimately the enforcement proceedings were closed.

Both applicants complained that a final judgment in their favour was not enforced, relying on Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property).

The Court held that, by failing for years to comply with the enforceable judgments in the applicants' favour, the domestic authorities prevented Ms Gerasimova from obtaining title to property and prevented Ms Yavorivskaya from receiving the compensation due to her.

The Court held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 and awarded Natalya Nikolayevna Gerasimova RUR 1,175 for costs and expenses and Natalya Alimpiyevna Yavorivskaya EUR 2,109 for pecuniary damage, EUR 4,000 for non-pecuniary damage and EUR 250 for costs and expenses. (The judgments are available only in English.)

Roseltrans v. Russia (no. 60974/00) Violation of Article 6 § 1

The applicant, Rossiyskiy Electrotransport - also known as Roseltrans - is a Russian company which was set up in Moscow in 1994 by the Federal Ministry of State Property Management to hold shares of former state enterprises which produced electrical equipment for the railways.

On 14 November 1995, acting on a directive from the President of Russia, the Ministry adopted a resolution which resulted in the applicant company being put into liquidation.

On 17 May 2000, Lyublinskiy District Court ordered the Ministry to annul the resolution of 14 November 1995. However, some time later, the Moscow public prosecutor lodged an application for supervisory review of the judgment, seeking to have it set aside.

Following a hearing which the applicant company was not invited to attend, the Presidium of Moscow City Court quashed the judgment of 17 May 2000 and ordered a fresh examination of the case by Lyublinskiy District Court. The applicant company was not served with either a copy of the prosecutor's request or a copy of the decision of 10 May 2001.

On 25 March 2003, the Commercial Court of Moscow declared void the resolution of 14 November 1995 and the follow-up resolutions and ordered the Ministry to annul them. The Ministry did not appeal and the judgment entered into force on 25 April 2003.

The applicant company complained that a final judgment found in its favour was quashed in supervisory review proceedings. It also complained that the proceedings before the Presidium of the Moscow City Court had been unfair in that the decision had been taken in its absence and that it had not been given an opportunity to submit observations in response to the prosecutor's request that the judgment be quashed. The applicant company relied on Article 6 § 1 (right to a fair hearing).

The Court noted that a final and binding judgment in the applicant's favour was set aside by a higher court in supervisory review proceedings, following an application by the Moscow 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 more than a year and ten months after the final judgment of 17 May 2000 was quashed. There had therefore been a breach of the principle of legal certainty and of the right to a court in the applicant's case. The Court held, unanimously, that the setting aside of the judgment of 17 May 2000 in supervisory review proceedings violated Article 6 § 1. It made no award under Article 41 (just satisfaction). (The judgment is available only in English.)

Violation of Article 1 of Protocol No. 1

In the following 16 cases the applicants, all Turkish nationals, complained of delays in the payment of compensation owed to them for the expropriation of their property. They further alleged that the sums they had received did not take into account the true rate of inflation between the time when the amounts had been determined and the date of payment. They all relied on Article 1 of Protocol No. 1 (protection of property); in addition, with the exception of Mr Yayla, they relied on Article 6 § 1 (right to a fair hearing within a reasonable time).

Başkan v. Turkey (no. 66995/01)

Fadıl Yılmaz v. Turkey (no. 28171/02)

Hüseyin Yiğit v. Turkey (no. 28183/02)

Kendirci v. Turkey (no. 28190/02)

Mehmet Yiğit v. Turkey (nos. 2, 3, 4 and 5) (nos. 28182/02, 28184/02, 28185/02 and 28188/02)

Mustafa and Mehmet Toprak v. Turkey (no. 28176/02)

Mustafa Toprak v. Turkey (nos. 1 and 2) (nos. 28176/02 and 28178/02)

Pembe and Others v. Turkey (no. 49398/99)

Salih Yiğit v. Turkey (nos. 1 and 2) (nos. 28186/02 and 28187/02)

Seyit Ahmet Özdemir and Others v. Turkey (no. 28192/02)

Yayla v. Turkey (no. 70289/01)

In each case the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 to the Convention and that it was not necessary to examine separately the complaint under Article 6 § 1 of the Convention.

In the cases of Başkan, Pembe and Others and Yayla the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants and awarded them EUR 17,765, EUR 82,360 and EUR 7,122 respectively for pecuniary damage, as well as EUR 500 in each case for costs and expenses. In the 13 other cases, as the applicants had not submitted claims for just satisfaction within the time allowed, the Court considered that no award should be made under this head. (The judgments are available only in French, with the exception of Başkan, Pembe and Others and Yayla, which are available only in English.)

Violation of Article 6 § 1

In the following four Turkish cases the applicants were tried by a national security court and given prison sentences for being members of, or aiding and abetting, illegal armed organisations. Relying on Article 6 § 1 (right to a fair trial), they complained that the proceedings against them had not been fair, submitting in particular that they had not been tried by an independent and impartial tribunal as the national security courts that convicted them had included a military judge. In addition, Mr Karabaş complained of the length of the proceedings against him.

Karabaş v. Turkey (no. 52691/99)

Levent Can Yılmaz v. Turkey (no. 53497/99)

Reyhan v. Turkey (no. 38422/97)

Yıldız and Others v. Turkey (no. 52164/99)

The Court held unanimously in all four cases that there had been a violation of Article 6 § 1 as regards the national security courts' lack of independence and impartiality. With regard to the other complaints concerning the unfairness of the proceedings, the Court reiterated that a court whose lack of independence and impartiality had been established could not under any circumstances guarantee a fair trial to persons subject to its jurisdiction. It therefore considered that that it was not necessary to examine those complaints.

As to Mr Karabaş's complaint concerning the length of the proceedings, the Court observed that the proceedings in his case had lasted three years and approximately nine months for two levels of jurisdiction, a period which, in the circumstances of the case, satisfied the "reasonable-time" requirement in Article 6 § 1. The Court therefore held unanimously that there had been no violation of Article 6 § 1 in that respect.

The Court considered unanimously in each case that the judgments in themselves constituted sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. It reiterated that, where it found that applicants had been convicted by a court that was not independent and impartial within the meaning of Article 6 § 1, the most appropriate form of redress would in principle be for them to be retried at an early date by a court satisfying those requirements. In respect of costs and expenses, the Court awarded EUR 900 to Mr Karabaş, EUR 1,500 to Mr Levent Can Yılmaz and EUR 1,400 to the applicants in the case of Yıldız and Others. (The judgments are available only in French.)

***

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.