Ministers’ Deputies

Annotated Agenda

CM/Del/OJ/DH(2006)976-Vol II Public   8 November 2006

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976th meeting (DH), 17-18 October 2006

Annotated Agenda[1]

Volume II

Public information version

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This document only takes into account the information available to the Secretariat on 8 September 2006.

CONTENTS

STATISTICAL TABLE. 3

SECTION 1 - FINAL RESOLUTIONS. 4

SECTION 2 - NEW CASES. 9

SECTION 3 - JUST SATISFACTION. 88

SECTION 6 - CASES PRESENTED WITH A VIEW TO THE PREPARATION
OF A DRAFT FINAL RESOLUTION. 111

c. PREPARATION OF THE NEXT DH MEETING (982nd MEETING, 5-6 December 2006) 128

Additional documents

Addendum General Questions

Addendum 1 – Final Resolutions

Addendum 2 – New cases

Addendum 4 – Cases raising special questions

Addendum Preparation of the next DH meeting (982nd meeting (DH), 5-6 December 2006)

STATISTICAL TABLE

SECTION 1 - FINAL RESOLUTIONS

(Addendum 1)

Action

The Deputies are invited to adopt the resolutions putting an end to the examination of the following cases as they appear in Addendum 1.

Decision: The Deputies adopted final Resolutions ResDH(2006)49 to ResDH(2006)67 as they appear in the Volume of Resolutions in the cases appearing in Section 1.

                        SUB-SECTION 1.1 – LEADING CASES

- 3 cases against Finland

32559/96          The Fortum Corporation, judgment of 15/07/03, final on 15/10/03

25702/94          K. and T., judgment of 12/07/01 – Grand Chamber

31611/96          Nikula, judgment of 21/03/02, final on 21/06/02

- 1 case against France

49636/99          Chevrol, judgment of 13/02/03, final on 13/05/03

- 1 case against Georgia

71503/01          Assanidzé, judgment of 08/04/04 - Grand Chamber

- 1 case against Greece

71498/01          Kotsaridis, judgment of 23/09/2004, final on 23/12/2004

- 1 case against Switzerland

26899/95          H.B., judgment of 05/04/01, final on 05/07/01

- 3 cases against the United Kingdom

26109/95          Santa Cruz Ruiz, Interim Resolution DH(99)131

32771/96          Cuscani, judgment of 24/09/02, final on 24/12/02

24833/94          Matthews, judgment of 18/02/99 - Grand Chamber, Interim Resolution ResDH(2001)79

                       SUB-SECTION 1.2 – CASES CONCERNING PROBLEMS ALREADY SOLVED

- 27 cases against Turkey

52133/99          Acar Ibrahim, judgment of 13/09/2005, final on 13/12/2005

57642/00          Alataş and Kalkan, judgment of 11/10/2005, final on 11/01/2006

66995/01          Başkan, judgment of 21/07/2005, final on 21/10/2005

47574/99          Çoruh, judgment of 20/09/2005, final on 20/12/2005

51482/99          Demir Penpe and others, judgment of 07/10/2004, final on 02/02/2005, rectified on 24/05/2005 and le 20/10/2005

44713/98          Derilgen and others, judgment of 20/09/2005, final on 20/12/2005

45712/99          Dost and others, judgment of 26/07/2005, final on 26/10/2005

52159/99          Ernekal, judgment of 13/09/2005, final on 13/12/2005

853/03              Kahveci, judgment of 15/07/2005, final on 15/10/2005

6759/03            Kaplan Cafer, judgment of 15/07/2005, final on 15/10/2005

6073/03            Kaplan Salih (No. 2), judgment of 15/07/2005, final on 15/10/2005

6071/03            Kaplan Salih, judgment of 15/07/2005, final on 15/10/2005

49394/99          Karapınar, judgment of 02/08/2005, final on 02/11/2005

68136/01          Kokol and others, judgment of 29/03/2005, final on 29/06/2005

28174/02          Kurucu, judgment of 15/07/2005, final on 15/10/2005

42752/98          Özdeş, judgment of 26/04/2005, final on 26/07/2005

49398/99          Pembe and others, judgment of 21/07/2005, final on 21/10/2005

2203/03            Sahin Zeynep, judgment of 15/07/2005, final on 15/10/2005

42913/98          S.S. Özulaş Yapı Kooperatifi, judgment of 08/11/2005, final on 08/02/2006

46085/99          Taş and others, judgment of 02/08/2005, final on 02/11/2005

71913/01          Taşkin Hasan, judgment of 13/09/2005, final on 13/12/2005

38861/03          Uludağ Suzi, judgment of 20/10/2005, final on 20/01/2006

13101/03          Uysal and others, judgment of 22/09/2005, final on 22/12/2005

44763/98          Yaşar and others, judgment of 08/11/2005, final on 08/02/2006

51483/99          Yazar, judgment of 07/10/2004, final on 02/02/2005, rectified on 24/05/2005

28167/02          Yılmaz and Gümüş, judgment of 15/07/2005, final on 15/10/2005

88/02               Yılmaz Cevdet and Hatice, judgment of 20/09/2005, final on 20/12/2005

                       SUB-SECTION 1.3 – CASES NOT INVOLVING GENERAL OR INDIVIDUAL MEASURES

- 4 cases against Finland

31764/96          K.P., judgment of 31/05/01, final on 05/09/01

29346/95          K.S., judgment of 31/05/01, final on 12/12/01

35999/97          Pietiläinen, judgment of 05/11/02, final on 27/01/03

30013/96          Türkiye iş Bankasi, judgment of 18/06/02, final on 18/09/02

                       SUB-SECTION 1.4 – FRIENDLY SETTLEMENTS AND PROBLEMS OF A GENERAL CHARACTER

- 1 case against Finland

60790/00          Lönnholtz, judgment of 25/04/2006 - Friendly settlement

- 1 case against Italy

17644/03          De Luca Otello, judgment of 09/02/2006 - Friendly settlement

- 2 cases against Portugal

54704/00          Ferreira Pinto, judgment of 26/06/03 - Friendly settlement

19485/02          Real Alves, judgment of 07/06/2005 - Friendly settlement

- 1 case against Turkey

27694/95           A.S., judgment of 28/03/02 – Friendly settlement

SECTION 2 - NEW CASES

This section lists the new judgments rendered by the European Court of Human Rights, (for further details, see the texts of the judgments on http://www.echr.coe.int).

Action

The Deputies are invited to take a decision to resume consideration of these cases following expiry of the date-limit set by the Court for payment of the just satisfaction or, depending on the requirements of the cases, on completion of bilateral consultations between the Secretariat and the delegations concerned.

Payment of just satisfaction

In all new cases in which states are obliged to pay a sum, whether granted by the Court or agreed to in friendly settlement, the authorities of the state concerned are invited to provide written confirmation of payment to the Secretariat.

In all these cases, just satisfaction or sums agreed under a friendly settlement has been awarded to the applicants except in the following case:

- Tsonev against Bulgaria (45963/99)

- Bazil against the Czech Republic (6019/02)

- Dostál against the Czech Republic (26739/04)

- Heřmanský against the Czech Republic (20551/02)

- Maršálek against the Czech Republic (8153/04)

- Brasilier against France (71343/01)

- Giniewski against France (64016/00)

- Kalló against Hungary (30081/02)

- De Sciscio against Italy (176/04) (reserved)

- Genovese against Italy (9119/03) (reserved)

- Gianni and others against Italy (35941/03) (reserved)

- Immobiliare Cerro S.a.s. against Italy (35638/03) (reserved)

- Izzo against Italy (20935/03)

- Sezen against the Netherlands (50252/99)

- Kveder against Slovenia (55062/00)

- Dumanovski against the “former Yugoslav Republic of Macedonia” (13898/02)

- Başlık and others against Turkey (35073/97)

- Bulut Adem and others against Turkey (50282/99)

- Tanrıkulu and Deniz against Turkey (60011/00)

- Tüm Haber Sen and Çınar against Turkey (28602/95)

- Yayan İbrahim against Turkey (57965/00)

- Berestovyy against Ukraine (35132/02)

- Savinskiy against Ukraine (6965/02)

General or individual measures

The general and/or individual measures required are currently under consideration in the context of bilateral consultations.

However, in all cases circulation of the text of the judgment to the competent authorities is required and delegations are invited to provide written confirmation of this.

- 1 case against Austria

*42780/98         I.H., judgment of 20/04/2006, final on 20/07/2006

The case concerns the violation of the applicants’ right to be promptly informed of the nature of the charges against them because a more serious charge was substituted in the verdict reached by the regional court in 1997. The applicants had been charged with rape under Article 201§2 of the Criminal Code, but were actually conficted of aggravated rape under Article 201§1, which carries a heavier sentence.

The European Court took the view that, for the right to defence be exercised effectively, the defence must have at its disposal full, detailed information concerning the charges made, including the legal characterisation that the court might adopt in the matter. Such information must be given either before the trial in the bill of indictment, or at least in the course of the trial by other means such as formal or implicit extension of the charges (§34 of the judgment). Furthermore the applicants received no redress for this omission at appeal (violation of Article 6 § 1, 3 (a) and (b)).

Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction with regard to non-pecuniary damage. Furthermore, the applicants may request reopening of the proceedings under section 363a of the Austrian Code of Criminal Procedures.

General measures: In the light of the findings of the European Court, information is awaited on measures envisaged or taken to ensure adapting national case-law, notably through dissemination and publication of the judgment.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this case at their 992nd meeting (3-4 April 2007) (DH),  in the light of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations.

- 1 case against Belgium

*19443/02         Vandaele and van Acker, judgment of 10/08/2006 – Friendly settlement

The case concerns the length of civil proceedings (complaint under Article 6§1). This complaint presents similarities to those made in several other cases in the context of which general measures are currently being examined (see Dumont case, application No. 49525/99, and other cases, at the 982nd meeting, December 2006).

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the sums agreed in this case: 2.         noted that the friendly settlement implies no further obligation on the part of the respondent state.

- 8 cases against Bulgaria

*46343/99         Riener, judgment of 23/05/2006, final on 23/08/2006

The case concerns the violation of the freedom of movement of the applicant (born in Bulgaria but having acquired dual Bulgarian and Austrian nationality by marriage) due to the ban imposed on her leaving Bulgaria between 1995 and 2004 for non-payment of tax debt amounting to the equivalent of at least 150,000 euros (violation of Article 2 of Protocol No 4).

The European Court found that the authorities had failed to give due consideration to the principle of proportionality in their decisions, the travel ban imposed on the applicant being of an automatic nature and of indeterminate duration. The authorities failed to take account of a number of relevant issues, such as the fiscal authorities’ failure to take steps to recover the debt, the debtor’s potential ability to pay and the respect of her private and family life, since under the legislation in force at the material time, a travel ban could be lifted only when the debt was either paid or sufficiently secured (apparently for the full amount) or after the extinction of the debt by prescription.

For the same reasons, the domestic courts only examined the formal lawfulness of the travel ban and thus only a limited degree of review was afforded to the applicant in respect of this measure (violation of Article 13).

Individual measures: The travel ban imposed on the applicant was lifted in 2004 following the expiry of the prescription period of her debt. The European Court awarded her just satisfaction in respect of the non‑pecuniary damage she sustained. The applicant’s request for compensation of an alleged pecuniary damage was rejected as it was not supported by convincing evidence.

• Assessment: in these circumstances, no further individual measure appears to be necessary.

General measures: The provisions of the Laws on Foreigners and on Passports, challenged in this judgment, were replaced in 1998 and 1999 respectively, by those of the Aliens Law and the Law on Bulgarian Identity Documents. However, these modifications do not appear to have remedied the deficiencies found in the European Court’s judgment (see the summary of the new provisions currently in force in §§61-66 of the judgment). Furthermore, the new provisions do not appear to contain any more safeguards against arbitrariness than those in force at the material time concerning the manner in which the authorities handled some issues in this case (in particular, their communication through internal notes – not communicated to the applicant – as regards the annual confirmation of non-payment of the debt and the prescription question, see §129 of the judgment).

In addition, it should be noted that the European Court referred in its judgment to different solutions concerning these issues adopted by several other member states and indicated that, regardless of the approach chosen, the principle of proportionality must apply, in law and in practice (§128 of the judgment).

• Evaluation: legislative measures appear to be necessary in this case. In any event, publication of the European Court’s judgment and dissemination to competent authorities would seem appropriate.

The Secretariat will write to the Bulgarian authorities inviting them to present a plan of action for the execution of this judgment. 

*           *           *

*24379/02         Kounov, judgment of 23/05/2006, final on 23/08/2006

The case concerns a violation of the applicant’s right to a fair trial due to the unjustified refusal by the Supreme Court of Cassation to reopen the criminal trial which resulted in his conviction in absentia in 1999 (violation of Article 6§1). In 2002 the Supreme Court of Cassation refused to re-examine the applicant’s case, finding that he had deliberately withdrawn from the proceedings when he absconded from the police station where he was being questioned about the relevant facts and that it was because of his wrongful conduct that he had been tried in absentia. The European Court noted that the applicant had been tried in absentia without having received any official information as to the accusations against him or the date of his trial. Having been interviewed about the facts by the police in 1998, he could only have suspected that proceedings might be initiated but had no way of precisely knowing what charges were to be brought.

Individual measures: The applicant was sentenced to four years’ imprisonment. In 2002, several sentences against the applicant, including that at issue, were combined and a consolidated sentence of four years’ imposed. The applicant, who had been detained since 1999, was released in 2003. In 2004 the decision combining the sentences was quashed and the district court found that the sentence imposedin absentia had to be executed separately. The applicant appealed this decision. According to the latest information the applicant provided to the European Court, this sentence was to be enforced shortly.

The European Court recalled its case-law according to which where an individual has been convicted despite a breach of his right to participate in his trial, a retrial or a reopening represents in principle an appropriate way of redressing the violation.

• Information is awaited on the applicant’s present situation and on whether he can obtain the reopening of his trial.   

General measures: Article 362a of the Code of Criminal Procedure, in force since 2000, provides the possibility for a person sentenced in absentia to obtain a re-trial, provided that he or she had not been aware of the proceedings. According to the prevailing practice of the Supreme Court of Cassation, the accused must be notified personally of the trial and the charges against him to establish that he is aware of the proceedings. In addition, a bench of the Supreme Court of Cassation, different from that which refused the reopening of the applicant’s trial in the present case, granted the applicant’s request concerning the reopening of another trial in absentia against him, finding that the fact of being questioned by the police on the relevant facts (the interrogation of 1998 concerned a number of burglaries for which the applicant was sentenced in two different proceedings) was not sufficient ground for assuming he was aware of the proceedings.

• Assessment: This being the case, the violation does not appear to reveal any structural problem concerning the guaranties of a fair trial in cases of conviction in absentia. For this reason, and having regard to the development of the direct effect given by Bulgarian courts to the Convention and to the Court's case-law, the publication and dissemination of the European Court's judgment to the Supreme Court of Cassation appear to be sufficient measures for execution.

• Information is awaited in this respect, the Secretariat will write to the Bulgarian authorities inviting them to present a plan of action for the execution of this judgment. 

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case, as well as concerning the applicant’s individual situation; 2.             agreed to resume consideration of this case at their 992nd meeting (3-4 April 2007) (DH),  on the basis of further information to be provided by the authorities of the respondent state concerning the applicant’s situation, if appropriate, and the publication and dissemination of the European Court’s judgment.

*           *           *

*47579/99         Raichinov, judgment of 20/04/2006, final on 20/07/2006

The case concerns a violation of the applicant’s freedom of expression due to his being sentenced in 1998 to a fine and to a public reprimand for having insulted a high-ranking official (violation of Article 10). The applicant, who was at that time head of the division in the Ministry of Justice responsible for financial support declared at a working meeting, with regard to a decision entrusting some financial matter to the Deputy Prosecutor-General, that in his opinion the latter was not honest and added that he could prove it. Taking into account the circumstances of the case, the European Court considered that the reaction of the Prosecutor-General who insisted on the applicant’s prosecution ex officio and the ensuing conviction were disproportionate and failed to answer any pressing social need.   

Individual measures: The European Court award just satisfaction including the amount of the fine paid by the applicant. The public reprimand was never enforced because the relevant prescription period expired. Furthermore, the applicant was rehabilitated automatically with the effect of the erasure of the sentence and its consequences (Article 88a of the Criminal Code).

• Confirmation is awaited of the annotation of this rehabilitation in the applicant’s criminal record.

General measures:

• Assessment: as the violation does not appear to reveal any structural problem concerning the protection of the freedom of expression in Bulgaria and having regard to the development of the direct effect given by Bulgarian courts to the Convention and to the Court's case-law, the publication and dissemination of the European Court’s judgment to competent courts appear to be sufficient measures for execution.

• Information is expected in this respect

Moreover, it has been noted that following modifications of the Criminal Code introduced in 2000, insult may now only be prosecuted privately (§§30 and 50 of the European Court’s judgment) and imprisonment may not longer be imposed for this kind of offences.   

*           *           *

*45963/99         Tsonev, judgment of 13/04/2006, final on 13/07/2006

The case concerns the courts' refusal to register the Communist Party of Bulgaria in 1997-98, based on insufficient grounds to justify such a radical measure (violation of Article 11).

The European Court noted in this respect that the alleged formal deficiencies in the registration documents or the similarity of the party’s name to that of another registered party did not constitute, in the circumstances of the case, sufficient reason to deny registration. As regards to the alleged dangers stemming from the party’s goals and declarations, the Court considered that the use of the word “revolutionary” in the party’s constitution did not warrant a finding that the party in question had opted for a policy that represented a real threat to Bulgarian society or to the Bulgarian state.

Individual measures: The applicant may apply for the party’s registration, as the refusal to register challenged in the European Court’s judgment does not have force of res judicata. As to the alleged non- pecuniary damage sustained by the applicant, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction. No further individual measure thus seems necessary.

General measures: The European Court noted in its judgment that at least eight other political parties were registered at the relevant time with the word “communist” in their names. In addition, a party named Communist Party registered a change in its name into Communist Party of Bulgaria in 2000 without any hindrance related to the similarity of the name with that of other parties (§§25 and 26 of the judgment). Finally, the applicant was the chairman of another party using the word “revolutionary” in its name and constitution, which had not had any difficulty during its registration (§35 of the judgment).

• Evaluation: In these circumstances, the violation found by the European Court in this case does not appear to reveal any structural problem concerning the registration of political parties in Bulgaria. In consequence, the publication and dissemination of the European Court’s judgment to the relevant courts to enable them to take the Court’s considerations into account and to draw their attention to their obligations under the Convention appear to be sufficient measures for execution.

            *           *

*50401/99          Dimitrov Vasko Yordanov, judgment of 03/05/2006, final on 03/08/2006

This case concerns the excessive length of the criminal proceedings instituted against the applicant in 1989 (violation of Article 6§1). It also relates to the lack of an effective remedy at the applicant's disposal against the excessive length of the proceedings (violation of Article 13).

Individual measures: None (proceedings closed).

General measures: The case presents similarities to that of Kitov (judgment of 03/04/2003), scheduled for examination at the 982nd meeting (December 2006).

*           *           *

*47823/99         Georgiev, judgment of 15/12/2005, final on 03/07/2006

50358/99          Pekov, judgment of 30/03/2006, final on 30/06/2006

*45466/99+       Rahbar-Pagard, judgment of 06/04/2006, final on 06/07/2006

These cases concern violations of the applicants' right to be brought before a judge promptly after their arrest between 1996 and 1998 (violations of Article 5§3).

The Georgiev case also relates to the lack of an enforceable right in Bulgarian law to compensation for detention contrary to Article 5 of the Convention (violation of Article 5§5).

The Pekov case also concerns the excessive length of the applicant’s house arrest between 1996 and 2003 (violation of Article 5§3) and the lack of judicial review of this measure (violation of Article 5§3). It relates also to the excessive length of the criminal proceedings instituted against the applicant in 1995 (violation of Article 6§1).

The Rahbar-Pagard case also concerns the excessive length of the applicant’s detention between May 1998 and October 1999 (violation of Article 5§3), the lack of judicial review of the lawfulness of the detention and the lack of prompt examination of one request for release (violation of Article 5§4). It relates finally to the impossibility for the applicants to obtain execution, between 2001 and 2003, of a final judgment ordering the investigation services to pay the first applicant compensation for losses she sustained as a result of the late examination of her request for release (violations of Article 6§1 and of Article 1 of Protocol No. 1).

Individual measures: the applicants in the two first cases have been released. The applicant who was detained in the Rahbar-Pagard case died in 2003. The European Court awarded just satisfaction in respect of the non-pecuniary damage the applicants suffered on account of the violations.

• Information is awaited on the state of the domestic proceedings in the Pekov case, and, where appropriate, on their acceleration.

General measures:

1) Violations of Article 5§§3 and 4 (right to be brought before a judge; lack of judicial review of the lawfulness of the detention):

These cases present similarities to those of Assenov (judgment of 28/10/1998) and Nikolova (judgment of 25/03/1999) closed by Resolutions ResDH(2000)109 and ResDH(2000)110, following a legislative reform of criminal procedure which took effect from 01/01/2000.

            2) Violation of Article 5§3 (excessive length of house arrest): the Pekov case presents similarities to that of Nikolova No. 2 (judgment of 30/09/2004), scheduled for examination at the 982nd meeting (December 2006). In this case the Bulgarian authorities have been invited to consider sending the judgment of the European Court to the competent courts with an explanatory note drawing their attention to the requirements of the Convention concerning the length and the justification of such measures. 

            3) Violation of Article 5§4 (lack of effective judicial review of the lawfulness of house arrest): the Pekov case presents similarities to that of Vachev (judgment of 08/07/2004) in which the European Court noted (§55 of the Vachev judgment) that in 2000, after the facts in this case, the Code of Criminal Procedure was modified: Article 151§2 introduced a full initial and subsequent judicial review of this measure (see also Articles 62 and 270 of the new Code of Criminal Procedure of 2006).

            4) Violation of Article 5§4 (lack of prompt examination of the requests for release): the Rahbar-Pagard case presents similarities to that of Kolev (judgment of 28/04/2005), scheduled for examination at the 982nd meeting (December 2006). In this case the Bulgarian authorities have been invited to inform the competent courts of the requirements of Article 5§4 of the Convention concerning this matter, and more particularly of the obligation also to examine promptly requests for release made at the trial stage.

5) Violation of Article 5§5 (lack of an enforceable right for compensation for detention contrary to Article 5):

The Georgiev case presents similarities to that of Yankov (judgment of 11/12/2005), scheduled for examination at the 982nd meeting (December 2006).

            6) Violation of Article 6§1 (excessive length of criminal proceedings): the Pekov case presents similarities to that of Kitov (judgment of 03/04/2003), scheduled for examination at the 982nd meeting (December 2006).   

7) Violation of Article 6§1 and of Article 1 of Protocol No. 1 (late execution by the authorities of a final judgment):

The Rahbar-Pagard case presents similarities to that of Angelov (judgment of 22/04/2004), scheduled for examination at the 982nd meeting (December 2006).   

- 3 cases against Croatia

38770/02          Krivokuća, judgment of 23/03/2006, final on 23/06/2006

This case concerns the violation of the applicant’s right of access to a court to obtain a determination of his civil claim filed in 1999 for damage caused by terrorist acts during the Homeland War in Croatia (1992-1995). In 1996, legislation was adopted ordering all proceedings of this kind to be stayed until new provisions were enacted to regulate the matter. The new legislation, which provides for the resumption of stayed proceedings, was only adopted by the Croatian Parliament on 14/07/2003 (violation of Article 6§1).

Individual measures: the Ministry of Justice had invited the competent courts to display special diligence while examining these cases, in order to ensure their acceleration (see final resolution ResDH(2006)3 adopted in the framework of the examination of the Kutić case, judgment of 01/03/2002).

General measures: This case presents similarities to the Kutić case (see above) which has been closed, following in particular:

- the entry into force of the new legislation of 2003 which provides for the resumption of stayed proceedings and

- the introduction of an effective domestic remedy whereby a complaint may be made about the lack of access to a court (since its decision of 24/03/2004, the Constitutional Court has awarded compensation in similar cases and set time-limits for deciding cases on the merits).

*           *           *

                       - Cases of length of civil proceedings and of lack of an effective remedy

29159/03          Poje, judgment of 09/03/2006; final on 09/06/2006

*13876/03         Šundov, judgment of 13/04/2006, final on 13/07/2006

These cases concern the excessive length of certain civil proceedings, which began in 1992 and 1995 and were still pending when the European Court delivered its judgments (violations of Article 6§1).

The Poje case also concerns the lack of an effective remedy at the applicants' disposal against the excessive length of the proceedings in question (violation of Article 13). The European Court noted than even though the applicants had lodged a constitutional complaint while their proceedings had still been pending, the Constitutional Court dismissed the complaint as inadmissible in 2003, once the proceedings had ended, without examining their length until that time.

Individual measures:

• Information is awaited on the state of the proceedings and if appropriate on their acceleration, having regard in particular to what is at stake for the applicants (the proceedings in these cases relate to requests for compensation for a road accident and to an employment dispute).

General measures:

            1) Violations of Article 6§1: The cases present similarities to that of Horvat (judgment of 26/07/2001) closed by Resolution ResDH(2005)60, following:

- the adoption of general measures to improve the efficiency of the judicial system and avoid new violations (Act amending the Act on Civil Procedure, adopted on 14/07/2003, which aims at strengthening procedural discipline and simplifying civil proceedings) and

- the introduction of an effective remedy against the excessive length of judicial proceedings (new Article 63 of the Act on the Constitutional Court, in force since 15/03/2002). 

In addition, it might be noted that following the amendments to the Law on the Judiciary, which entered into force on 29/12/2005, the Constitutional Court is no longer competent to examine at first instance complaints against the excessive length of judicial proceedings. Instead, the courts superior to those dealing with the merits of a case will have such competence. Their decisions concerning such complaints may be appealed before the Supreme Court and the decisions of the latter before the Constitutional Court.  

            2) Violation of Article 13 in the Poje case: it should be noted that the Constitutional Court changed its practice of dismissing complaints against the excessive length of judicial proceedings once the proceedings had finished even if such complaints had been lodged while the proceedings were been pending (see decision No. U-IIIA-603/2003 of the Constitutional Court of 24/09/2004).

- 5 cases against Cyprus

- Cases concerning excessive length of proceedings before civil courts (and lack of an effective domestic remedy)

Applications	Cases	Duration of proceedings	Courts involved	State of proceedings
*73802/01	Gavrielidou and others, judgment of 06/04/06, final on 06/07/06	1st set: October 1985-January 2006 (20 yrs, > 3 mths); 2nd set: February 1986- April 2003 (17 yrs, > 2 mths) (recognition by Cyprus of right of individual petition: January 1989)	Limassol District Court; Supreme Court	Closed
2669/02	Kyriakidis and Kyriakidou, judgment of 19/01/06, final on 19/04/06	January 1998-May 2003 (5 yrs, 4 mths)	Nicosia District Court	Closed
68448/01	Lerios, judgment of 23/03/06, final on 23/06/06	August 1995-January 2001 (5 years & more than 5 months)	Paphos District Court; Supreme Court	Closed
19106/03	Pastellis, judgment of 02/03/06, final on 02/06/06	January 1989-December 2002 (13 years & more than 11 months)	Larnaca District Court; Supreme Court	Closed
*47119/99	Shacolas, judgment of 04/05/2006, final on 04/08/2006	Since January  1986 (c. 17 yrs); (recognition by Cyprus of right of individual petition: January 1989)	Nicosia Court of first instance; Supreme Court	Pending

These cases concern excessive length of proceedings before civil courts. The cases of Gavrielidou and others and Lerios concern also the lack of an effective domestic remedy (violations of Articles 6§1, 13).

Individual measures: In all cases are closed except that of Shakolas. Information is awaited concerning the state of these proceedings.

General measures:

            1) Violations of Article 6§1:

• Measures adopted: These cases present similarities to that of the Gregoriou group (judgment of 25/03/03), section 4.2, Volume I). In the context of that group, the Cypriot authorities informed the Committee of regulatory measures (in particular a series of circulars issued by the Supreme Court from 1995-2003) adopted for the prevention of similar violations, and that in 2005 the average length of proceedings in the District Courts and in the Supreme Court was 2½ years.

By letter of 19/07/06 the Cypriot authorities informed the Committee that the seven similar judgments of the Cichowicz group (section 2, 970th meeting, July 2006) were promptly disseminated by the Human Rights Sector of the Government Agent to judicial authorities, the Justice Ministry, the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees.

• Information awaited on further possible legislative or other measures envisaged to accelerate proceedings before civil courts.

            2) Violation of Article 13:

• Measures under way: By letter of 19/07/2006 the Cypriot authorities informed the Committee that the Human Rights Sector of the Government Agent has been preparing legislation, in accordance with the Court’s case-law, providing an effective remedy in cases of excessively lengthy proceedings. The draft legislation will be tabled in Parliament by the Justice Ministry once approved by the government. More information is awaited as well as a copy of this draft legislation with an indicative timetable for its adoption.

In the context of the legislative process under way, the authorities’ attention is drawn to Committee of Ministers’ Recommendation Rec(2004)6 to member states on the improvement of domestic remedies and to measures adopted by other countries confronted with similar problems (see e.g. Final Resolutions ResDH(2005)60 on Horvat and 9 other cases against Croatia; ResDH(2005)67 on Jóri and 18 other cases against the Slovak Republic).

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction if need be, and to join them, at the same meeting, with the group of cases of Gregoriou, to supervise the general measures proposed to prevent new, similar violations as well as individual measures to put an end to violation and to erase, as far as possible, the consequences for the applicant in the Shakolas case.

- 19 cases against the Czech Republic

*50073/99         Chadimová, judgment of 18/04/2006, final on 18/07/2006

The case concerns the excessive length of criminal proceedings brought against the applicant in 1992 for fraud and forgery of public documents concerning an agreement to return a building in Prague and an adjoining plot of land. Proceedings lasted 11 years and 6 months, ending when the applicant accepted a presidential pardon and reaching no verdict on the merits (violation of Article 6§1).

The case also concerns a violation of the applicant’s right to the peaceful enjoyment of her property in that the municipal court forbade her to dispose of the building in question from June 1994 to May 1999, on grounds which were not provided for in Czech law (violation of Article 1 of Protocol No. 1).

Finally, the case concerns the fact that audio cassettes containing recordings of the applicant’s conversations with her counsel, made while the applicant’s telephone was being tapped during the criminal proceedings, were not destroyed, in disregard of a decision of the Constitutional Court rendered in November 1995 (violation of Article 8).

Individual measures: The European court considered that the question of the application of Article 41 (just satisfaction) was not ready and reserved the question as a whole.

• Information is awaited on the applicant’s situation, and in particular as to whether the cassettes have now been destroyed, as ordered by the Constitutional Court in November 1995.

General measures: Judgments of the European Court concerning the Czech Republic are always translated and published on the internet site of the Ministry of Justice (www.justice.cz).

            1) Violation of Article 6§1: This case presents similarities to that of Bořánková (judgment of 07/01/03, Section 4.2, Volume I).

            2) Violations of Article 1 of Protocol No.1 and Article 8:

• Information is awaited on measures taken or envisaged to prevent new, similar violations.

Decision: The Deputies agreed to resume consideration of this item at their 992nd meeting (3-4 April 2007) (DH),  on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations as well as the individual measures to be taken in order to put an end to the violations and erase, as far as possible, their consequences for the applicant.

*           *           *

*5424/03           Šroub, judgment of 17/01/2005, final on 03/07/2006

This case concerns a violation of the applicant's right of access to a court in that the Constitutional Court dismissed his appeal in civil proceedings as out of time. The European Court found that the Constitutional Court's erroneous application of the procedural requirements deprived the applicant of the right of access to this court (violation of Article 6§1).

Individual measures: The European Court considered that the finding of the violation in itself constituted sufficient just satisfaction. Considering the nature of the violation, the damage suffered by the applicant and the fact that his case had been considered on the merits at both first instance and appeal, no specific individual measures would appear to be necessary. In addition, the applicant has submitted no claim for such measures.

General measures: This case presents similarities to the cases of Běleš, judgment of 12/11/2002 and Zvolský and Zvolská, judgment of 12/11/2002 (both in Section 6.2), following which the authorities adopted legislative and jurisprudential measures to clarify the admissibility requirements for constitutional complaints in the Czech Republic (in particular the rules regarding time-limits for complaints and the conditions for exhaustion of other remedies). These changes have been summed up in the context of the case of Vodárenská Akciová Společnost, A.S (See 928th meeting (June 2005) Section 6.1, Volume I).

The case also presents similarities to the Kadlec and Bulena cases (in Section 4.2 for the 982nd meeting), in which the Czech authorities are currently adopting measures concerning the excessive formalism of the Constitutional Court in declaring complaints inadmissible. 

*           *           *

51277/99          Krasniki, judgment of 28/02/2006, final on 28/05/2006

The case concerns a violation of the applicant’s right to a fair trial and, in particular, of his defence rights in certain criminal proceedings. The applicant was convicted in 1998 and sentenced to two years’ imprisonment and expulsion from the Czech Republic exclusively on the basis of the testimony of two anonymous witnesses (violation of Article 6§§1 and 3d).

The European Court found that the interest of the witnesses in remaining anonymous could not justify limiting the rights of the applicant to such extent, noting that the judicial authorities had not seriously examined or justified the reasons for granting anonymity to the witnesses, particularly since the applicant’s conviction was solely or at least to a decisive extent based on their testimony.

Individual measures: The European Court found that the most appropriate form of redress in this case would be retrial de novo or reopening of the proceedings, if requested. According to Section 119 of the Constitutional Court Act (No. 83/2004), criminal proceedings in which the Constitutional Court has previously ruled, may be re-opened if an international court finds a violation of human rights or fundamental freedoms guaranteed by international treaty. The successful party must make such request within 6 months from the date on which the international decision becomes final.

The European Court also found that the finding of the violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

• Assessment: This being the case, no further individual measure seems necessary. 

General measures: Taking into account the nature of the violation and the fact that it does not have its origins in the law, the publication of the European Court’s judgment and its large dissemination to criminal courts seems sufficient to prevent new similar violations.

• Measures already taken: The judgment of the European Court has been published on the internet site of the Ministry of Justice (www.justice.cz).

• Further information is awaited on the dissemination of the judgment.

*           *           *

*75455/01         Tariq, judgment of 18/04/2006, final on 18/07/2006

The case concerns the excessive length of the applicant’s detention on remand (17/12/1997- 17/12/2001) given that the domestic courts based his continued detention on reasons which did not seem “relevant and sufficient” in the light of the European court’s case-law and given their failure to exercise the requisite special diligence in the conduct of the case (violation of Article 5§3).

The case also concerns the excessive length of the criminal proceedings brought against the applicant in December 1997 (violation of Article 6§1). When the Court delivered its judgment the proceedings had already lasted 8 years, 3 months at two degrees of jurisdiction.

Individual measures:

• Information is awaited concerning the applicant’s situation, the state of the proceedings and, if applicable, measures taken to accelerate them.

General measures: The European Court’s judgments concerning the Czech Republic are always translated and published on the internet site of the Ministry of Justice (www.justice.cz).

            1) Violation of Article 6§1: The case presents similarities to that of Bořánková (judgment of 07/01/03, Section 4.2, Volume I).

            2) Violation of Article 5§3: The case presents similarities to that of Punzelt (judgment of 25/04/2000, Resolution ResDH(2004)33 of 15/06/2004), in which the Czech authorities took measures to prevent excessively lengthy remands.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction if need be and to join it, subsequently, with the case of Bořánková , in order to supervise the general measures proposed in order to prevent new, similar violations, and if appropriate, to put and end to the violation and erase, as far as possible, its consequences for the applicant.

*           *           *

                        - Cases of length of judicial proceedings

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
3331/02	Bačák, judgment of 07/03/2006, final on 07/06/2006	About 8 years and 5 months (one degree of jurisdiction)	Yes.	1997
*6019/02	Bazil, judgment of 11/04/2006, final on 11/07/2006	Nearly 8 years and 5 months (4 degrees of jurisdiction)	No.	1995
22771/04	Cambal, judgment of 21/02/2006, final on 21/05/2006	4 years and 8 months (one degree of jurisdiction)	Yes.	2001
26739/04	Dostál, judgment of 21/02/2006, final on 21/05/2006	5 years and 5 months (2 degrees of jurisdiction)	No.	2000

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
*20551/02	Heřmanský, judgment of 04/04/2006, final on 04/07/2006	About 8 years and 5 months (2 degrees of jurisdiction)	Yes.	1997
*19621/02	Klepetář, judgment of 21/02/2006, final on 03/07/2006	About 10 years and 7 months (3 degrees of jurisdiction)	Yes.	1995
*30940/02	Kozák, judgment of 18/04/2006, final on 18/07/2006	14 years (3 degrees of jurisdiction, each one several times)	No.	1992 (when the Convention entered into force)
*8153/04	Maršálek, judgment of 04/04/2006, final on 04/07/2006	4 years and 10 months (3 degrees of jurisdiction)	No.	1999
*38194/02	Metzová, judgment of 18/04/2006, final on 18/07/2006	About 13 years and 10 months (3 degrees of jurisdiction)	Yes.	1992
*14881/02	Pachman and Mates, judgment of 04/04/2006, final on 04/07/2006	Over 8 years (3 degrees of jurisdiction)	No.	1993
*12605/02	Patta, judgment of 18/04/2006, final on 18/07/2006	1) Over 8 years and 9 months (3 degrees of jurisdiction) 2) Over 12 years and 6 months (4 degrees of jurisdiction)	1) No. 2) No.	1) 1992 2) 1992
20252/03	Rázlová, judgment of 28/03/2006, final on 28/06/2006	Over 7 years and 9 months (investigating bodies)	Yes.	1998
*15741/02	Vojáčková, judgment of 04/04/2006, final on 04/07/2006	8 years and 11 months (2 degrees of jurisdiction, 4 times)	No.	1992
16226/04	Zámečníková et Zámečník, judgment of 21/03/2006, final on 21/06/2006	Over 7 years and 1 month (2 degrees of jurisdiction, each twice)	Yes.	1999
*32455/02	Zbořilová and Zbořil, judgment of 18/04/2006, final on 18/07/2006	About 13 years and 2 months (2 degrees of jurisdiction)	Yes.	1993

These cases concern the excessive length of civil or criminal proceedings (violations of Article 6§1). The Kozák, Maršálek et Metzová cases also concern the absence of an effective remedy whereby they might complain of the length of proceedings (violation of Article 13). In the cases of Cambal, Dostál and Maršálek, the European Court noted, in addition, that the courts should have acted with a special speediness, considering that the proceedings at issue related to child custody. Eight cases were still pending at the time when the Court gave its judgments. 

Individual measures: In the Bačák, Cambal, Heřmanský, Klepetář, Metzová, Rázlová, Zámečníková and Zámečník and Zbořilová and Zbořil cases, information is awaited on the state of the proceedings and on the measures taken or envisaged for their acceleration, if still pending. It is recalled that urgent individual measures are expected in Cambal case where the European Court has insisted on the requirement of special diligence as the case concerns child custody.

General measures: These cases present similarities to the Bořánková and Hartman cases (judgments of 07/01/2003 and 10/07/2003 (Section 4.2) in which the Czech authorities have already adopted and are currently adopting measures concerning the excessive length of judicial proceedings and the lack of effective remedy.

- 3 cases against Finland

*18249/02         C., judgment of 09/05/2006, final on 09/08/2006

This case concerns a violation of the applicant’s right to respect for his family life due to a Supreme Court decision reversing two judgments of lower courts awarding the applicant custody of his children (violation of Article 8).

The custody had initially been awarded to the children’s mother, who lived in Finland with her female partner. Following the mother’s death in 1999, a District Court decision, confirmed at appeal, awarded custody to the father, who lives in Switzerland. However, the Supreme Court reversed these judgments, instead awarding custody to the mother’s partner, with whom the children had been living since 1993 and with whom they had continuously expressed the wish to live.   

The European Court found that the Supreme Court, in giving exclusive weight to the children’s views without considering any other factors, in particular the applicant’s rights as a father, had effectively given the children, both of whom were at least 12, an unconditional power of veto. Moreover, the European Court found that the Supreme Court had acted without holding a hearing and without requiring any investigation or expert testimony which might have clarified the parties’ positions.

Individual measures: The applicant may apply for reopening of the case (Chapter 31, Article 2, of the Code of Judicial Procedure); it should be noted in this context that the children are now 17 and 19. In addition the European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

General measures: The judgment of the European Court has been published in the judicial database Finlex (www.finlex.fi). In view of the direct effect of the Convention and its case-law in Finnish law, the dissemination of the European Court’s judgment to all judicial authorities also appears useful to prevent new, similar violations.

*              *              *

                       - Cases of length of criminal proceedings

*77138/01         Mattila, judgment of 23/05/2006, final on 23/08/2006

64436/01          Kajas, judgment of 07/03/2006, final on 07/06/2006

These cases concern the excessive length of certain criminal proceedings. The proceedings in the Kajas case lasted altogether 4 years, 2 months (1995-2000) and in the Mattila case 8 years, 11 months (1992‑2001)(violations of Article 6§1).

The European Court found that the time taken, in particular before the Court of Appeal (Kajas and Mattila) and the District Court (Mattila) was excessive.

Individual measures: None (proceedings closed).

General measures: These cases present similarities to the Kangasluoma case (judgment of 20/01/2004, scheduled for examination at the 982nd meeting (December 2006), in which the Finnish authorities are currently adopting measures concerning the excessive length of judicial proceedings and the lack of an effective remedy.

- 26 cases against France

*59450/00         Ramirez Sanchez, judgment of 04/07/2006 - Grand Chamber

This case concerns the lack of a remedy in domestic law whereby the applicant might challenge decisions prolonging his solitary confinement between 1994 and 2002 (violation of Article 13).

Individual measures: The violation found relates to a period which ended in 2002. The applicant has not been held in solitary confinement since January 2006 (§76 of the judgment). Furthermore, it should also be noted, besides the absence of violation of Article 3, that the applicant made no claim before the European Court for compensation of any damage sustained.

• Assessment: in these circumstances, no individual measure appears necessary.

General measures: Since a change in the jurisprudence of the Conseil d’Etat, an application for judicial review may now be made before administrative courts in respect of decisions concerning solitary confinement and the decision quashed if appropriate. In this respect, it is also recalled that the administrative courts directly apply the Convention. However, the European Court noted that this change of jurisprudence “would warrant being brought to the attention of a wider audience” (§165).

• Information awaited:

- the Secretariat notes that since this change of jurisprudence, the provisions regulating solitary confinement have been modified by a Decree (2006-338 of 21 March 2006), as well as those concerning the decisions taken by the prison authorities (Decree 2006-337 of 21 March 2006). Confirmation is awaited that these modifications do not cast doubt on the principles laid down by the Conseil d’Etat.

- If that is the case, information is awaited on measures possibly taken or envisaged to bring the Conseil d’Etat’s jurisprudence to the attention of a wider audience. In this context, wide publication of the judgment, as well as its dissemination to the competent courts, would in any case appear necessary.

The Secretariat will write to the French authorities to submit more detailed questions.

*              *              *

*71343/01         Brasilier, judgment of 11/04/2006, final on 11/07/2006

*64016/00         Giniewski, judgment of 31/01/2006, final on 01/05/2006

These cases concern breaches of the freedom of expression of the applicants in that the civil courts found against them in defamation proceedings (violations of Article 10).

In the Brasilier case, the applicant was ordered to pay symbolic damages of one French franc for having publicly libelled a politician on banners and in leaflets, but was unable to prove the truthfulness of his utterances.

The European Court found in particular that the value judgments expressed by the applicant were sufficiently grounded in fact, but also that they concerned a politician, as such, and were uttered by an electoral opponent.

In the Giniewski case, the applicant was also ordered to pay symbolic damages of one French franc and to publish, at his own expense, a retraction in a national newspaper, for having published an article concerning the scope of a Catholic dogma and its possible ties with the origins of the Holocaust.

The European Court considered in particular that this was not a text attacking religious convictions as such but rather presented the applicant’s reflections as a journalist and a historian. The article had not been “gratuitously offensive” or insulting, the applicant had not sought to incite disrespect or hatred, and did not cast doubt in any way on clearly established historical facts.

Individual measures: Neither applicant presented any claim in respect of possible damages in due time before the European Court.

Given their symbolic civil conviction, no other individual measure seems to be necessary.

General measures: These cases present similarities to that of Paturel, scheduled for examination at the 982nd meeting, December 2006).

• Information is awaited as to the measures taken or envisaged to avoid new, similar violations. In any case, the publication and the dissemination of the judgment to the authorities concerned appears to be necessary.

*              *              *

21324/02          Plasse-Bauer, judgment of 28/02/2006, final on 28/05/2006

This case concerns the failure to enforce a court decision awarding the applicant visitation rights in respect of her daughter and laying down the conditions for the exercise of this right (violation of Article 6§1). An appeal court judgment of 1997 required the presence at visits of a third party designated by an association. In point of fact, the association concerned found it materially impossible to fulfil its mission, and accordingly the judgment was not enforced.

The European Court held that the national authorities had not made all sufficient efforts which could reasonably be expected to uphold the terms and conditions of the visiting rights. In particular, they should have checked beforehand whether the association was in a position to carry out the public authorities’ mandate to ensure the conditions for the exercise of visiting rights as laid down in the appeal court judgment, so that it could be enforced.

Individual measures: The applicant’s daughter came of age in 2004. The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained by the applicant.

▪ Assessment: in view of these circumstances, no individual measure seems necessary.

General measures:

▪Information is awaited as to measures taken or envisaged to ensure that, in the future, the terms and conditions of visiting rights laid down in court decisions are respected. In any event, it appears necessary to publish this judgment and send it out to the competent authorities, so that they may draw all the consequences.

Decisions: The Deputies 1              agreed to resume consideration of this item at their 982nd meeting (.5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this item at their 2nd DH meeting in 2007 in the light of information to be provided by the authorities of the respondent state on the publication and dissemination the judgment of the European court and, if appropriate, on the action plan proposed to prevent future violations.

*              *              *

*60796/00         Cabourdin, judgment of 11/04/2006, final on 11/07/2006

67847/01          Lecarpentier and other, judgment of 14/02/2006, final on 14/05/2006

*72038/01         Saint-Adam and Millot, judgment of 02/05/2006, final on 02/08/2006

These cases concern the retroactive application of new legislation during pending judicial proceedings. Each of the applicants, having contracted bank loans between 1987 and 1989 and finding themselves subsequently in financial difficulty, sought annulment of their loan agreements on the ground that a formal requirement (inclusion of an amortisation schedule in the initial loan proposal) had not been respected by their respective banks. The annulment sought would have led to the reimbursement of sums already paid in execution of the contract. The applicants’ claims were rejected because of the courts’ retroactive application of Law No. 96-314 which provides that, except for decisions which have already become final, loan proposals made before 31/12/1994 without amortisation schedules are valid, provided that certain other conditions are respected.

In the cases of Cabourdin and Saint-Adam and Millot, the European Court found that the proceedings had been unfair, because Law No. 96-314, which provides for final and retroactive settlement of disputes between private individuals before the national courts, had not been justified by compelling grounds of the general interest (violations of Article 6§1). In the Lecarpentier case, the European Court found that the law had placed an “abnormal and excessive burden” on the applicants and had interfered disproportionately with their right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1).

Individual measures:

            1) In the Cabourdin and Lecarpentier cases: The European Court held that it could not speculate as to whether the outcome of the proceedings would have been different had the violation of the Convention not taken place. However, it also said, in the Cabourdin case, that it did not consider it unreasonable to think that the applicant had suffered a genuine opportunity loss and, in the Lecarpentier case, that the applicants has suffered a breach of their right to the peaceful enjoyment of their property. In these circumstances and deciding on the applicants’ requests for both non-pecuniary and pecuniary damages, the Court granted them just satisfaction in respect of all heads of damage taken together.

• Information is awaited on the applicant’s present situation and whether they are still suffering negative consequences of the violations.

            2) In the Saint-Adam and Millot case: The European Court found that the question of the application of Article 41 is not ready for decision and reserved it.

General measures:

• Information is awaited on the measures taken or envisaged to avoid new, similar violations.

Decisions: The Deputies 1.             agreed to resume consideration of the Cabourdin and Lecapentier cases at their 982nd meeting (5‑6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases if necessary; 2.             agreed to resume consideration of the case of Saint-Adam and Millot, if appropriate, for consideration of individual measures once the European Court had given judgment under Article 41; 3.             agreed to resume consideration of all three cases at the 992nd meeting (3-4 April 2007) (DH),  in the light of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations.

*              *              *

*75699/01         Vaturi, judgment of 13/04/2006, final on 13/07/2006

*17902/02         Zentar, judgment of 13/04/2006, final on 13/07/2006

These cases concern the unfairness of certain criminal proceedings against the applicants. They were definitively convicted (in 2000 and 2001 respectively) without having been able to examine witnesses or have them examined (violations of Articles 6§§1 and 3d).

The European Court considered, in the Vaturi case, that whilst the testimony of the witnesses concerned was not the sole basis of the applicant’s conviction, it might under the circumstances have contributed to the balance and equality between prosecution and defence which must prevail throughout proceedings, if he had been allowed to examine them.

On the other hand, in the Zentar case, the Court considered that witness testimony had played a decisive role in the judges’ assessment of the merits and furthermore that, even supposing that the guilty verdict against the applicant had not been based to a decisive extent on that testimony, it was an inescapable fact that the French authorities had taken no steps to track down the two witnesses concerned.

Individual measures: The applicants may apply for re-examination of the final judgements at issue under Articles L 626-1 ff of the Code of Criminal Procedure. The European Court has granted them just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: no further individual measure appears necessary.

General measures: These cases present similarities with those of Rachdad (judgment of 13/11/2003, in Section 6.1 at the 940th meeting, October 2005) and Mayali (judgment of 14/06/2005, scheduled for examination at the 982nd meeting, December 2006). The European Court’s judgment in the Rachdad case was publish and sent out to all courts which might find themselves with a similar case, and this measure was considered sufficient in view of the direct effect given by French courts to the Convention as interpreted by the European Court and the fact that the violation was not due to the provisions of the law but rather to their misapplication by the courts. Nonetheless, each case being specific, it seems necessary to publish and/or send out the European Court’s judgments in Vaturi and Zentar. A similar request has been made in the Mayali case.

• Information is awaited on measures taken or envisaged to publish these judgments and/or send them out to the relevant authorities.

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH) in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases if necessary and to join them, at the same meeting, with the Mayali case to examine the general measures proposed to prevent new, similar violations.

*              *              *

73893/01          Besseau, judgment of 07/03/2006, final on 07/06/2006

This case concerns an infringement of the applicant’s right of access to a tribunal (violation of Article 6§1). In 2000, she was given a fixed-rate fine for a road traffic offence. The applicant contested the offence as she was entitled to do in law, but the public prosecutor’s office failed to refer her letter of complaint to the police court although obliged to do so under Article 530-1 of the Code of Criminal Procedure. This Article gives the prosecutor no choice but to pass complaints on, to declare them inadmissible or abandon the prosecution. None of these was done, and the fine was upheld.

Individual measures: The European Court granted the applicant just satisfaction equivalent to the amount she had to pay as a fine.

General measures: The Court held that there was no distinction between this case and the case of Peltier, the examination of which was closed by Resolution ResDH(2003)94, in particular in view of the fact that this judgment had been disseminated to the authorities concerned.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction; 2.             recalled that the other measures required for execution had already been taken.

*              *              *

41522/98          Gaultier, judgment of 28/03/2006, final on 28/06/2006

38287/02          Van Glabeke, judgment of 07/03/2006, final on 07/06/2006

These cases concern the excessive time taken to examine applications for immediate release from psychiatric institutions under an urgent procedure before the civil court (Tribunal de grande instance) (violations of Article 5§4).

In the first case, proceedings initiated by the applicant in 1996 and 1997 lasted 10 and 4 months respectively. In the second, applications for release lodged in March 2002 on the applicant’s behalf by her mother and by an association (Afcap – Association française contre l’abus psychiatrique) were never considered on the merits as the applicant had left hospital in the meantime.

Individual measures: The European Court has awarded just satisfaction in respect of the non-pecuniary damage sustained by the applicants in both cases.

• Information is awaited on the situation of the applicant in the Van Glabeke case insofar as no judicial decision was rendered in response to her applications for immediate release (§33 of the judgment). The Secretariat has received a letter from Afcap dated 05/09/2006 demanding the adoption of individual measures.

General measures: These cases present similarities with those of Delbec III (judgment of 18/06/02, final on 18/09/02) and other similar cases (Section 6.1, Volume I).

Afcap wrote to the secretariat on 07/09/2006 expressing the view that the general measures taken in these cases (wide dissemination of the judgments to the courts concerned) were inadequate given the number of European Court judgments concerning this problem. The secretariat nonetheless notes that, in all seven cases concerning this problem currently pending before the Committee (i.e. these two, the Delbec III group and that of Mathieu in Section 3), the facts at the origin of the violations took place before the French authorities took the general measures mentioned, the effectiveness of which is thus not called into question.

Decisions: The Deputies 1.             agreed to resume consideration of these items at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases if necessary; 2.             agreed to resume consideration of the Van Glabeke case at their 987th meeting (13-14 February 2007) (DH),  in the light of further information to be provided by the authorities of the respondent state concerning possible individual measures; 3.             recalled that the other measures required for execution had already been taken.

*              *              *

63313/00          André, judgment of 28/02/2006, final on 28/05/2006

62118/00          Brenière, judgment of 28/02/2006, final on 28/05/2006

*8112/02           De Luca, judgment of 02/05/2006, final on 02/08/2006

66701/01          Deshayes No. 1, judgment of 28/02/2006, final on 28/05/2006

*3774/02           Vesque, judgment of 07/03/2006, final on 03/07/2006

These cases concern the unfairness of certain proceedings before the criminal chamber and a civil chamber of the Cour de cassation between 1999 and 2001 (violations of Article 6§1). According to the European Court’s judgment, these violations were due to:

- failure to communicate the report of the reporting judge to the applicant, whereas this report had been submitted to the Advocate-general (all these cases)

- the Advocate-general’s presence at the Court's deliberations, which is in itself incompatible with Article 6§1 (Deshayes and De Luca cases).

Individual measures: To date the applicants have made no request before the Committee of Ministers. In the cases of Brenière, De Luca and Vesque the applicants (who were convicted in the criminal proceedings at issue) may apply for the re-opening of their appeal on the basis of Articles L 626-1 ff of the Code of Criminal Procedure.

General measures:

            1) Failure to communicate the report of the reporting judge: These cases present similarities to those of Reinhardt and Slimane-Kaïd (22921/93, Resolution DH(98)306) and Slimane-Kaïd No. 2 (29507/95, in Section 6.2 following measures taken by the respondent state). Pursuant to the measures taken subsequently to the facts in the present cases, the report of the reporting judge (a document establishing the question of law raised by the case) is now communicated, together with the file, to both the public prosecutor and the parties; but his opinion on the decision to be adopted and the draft judgments he proposes for the deliberations of the Cour de cassation are communicated to neither.

            2) Presence of the Advocate-general at the deliberations: These cases present similarities to that of Fontaine and Bertin (Section 3.b), in which the examination of general measures has been closed in view of the measures adopted by the respondent state subsequently to the facts in the present cases. Hearings have been re-organised into a first, public part, during which the reports of the members of the Court and the opinions and submissions of the advocates-general are developed, followed by a second, non-public part, during which the Court deliberates. As a consequence, advocates-general no longer attend the deliberations.

• Assessment: no further measure appears necessary.

Decisions: The Deputies 1.             agreed to resume consideration of these items at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases if necessary; 2.             agreed to resume consideration of the André case at the latest  at their 2nd DH meeting in 2007 to consider the applicant’s individual situation and on that basis to gauge the need for indvidual measures; 3.             recalled that the other execution measures required had been taken.

*              *              *

*16022/02         Roux, judgment of 25/04/2006, final on 25/07/2006

The case concerns an infringement of the principle of equality of arms on account of the privileges of the Government Commissioner (a different institution from that concerned in the Kress case, judgment of 07/06/01) in expropriation proceedings, to the detriment of the persons whose land had been expropriated (violation of Article 6§1).

Recalling its conclusions in the Yvon case (judgment of 24/04/2003, Section 4.2, Volume I) the European Court found that the violation arose from the Government Commissioner’s advantage with regard to the elements at his disposal to assess the expropriated land and his dominant role in the proceedings, as an expert and a party at the instance, as well as his considerable influence over the judge's assessment of the land (§§33 to 37 of the Yvon judgment).

Individual measures: In view of the state’s broad margin of appreciation to fix compensation reasonably in relation to the value of the expropriated land, the European Court dismissed the applicants’ complaint that their right to the peaceful enjoyment of their possessions had been breached (§§31-32 of the judgment). It also considered that it could not speculate as to the probable outcome of the proceedings at issue had the violation of Article 6§1 not taken place, and therefore rejected the applicants’ claims in respect of pecuniary damage.

• The assessment of the applicants’ situation is underway, in the light of the reflections in this respect in the context of the Yvon case.

General measures: The measures taken (subsequent to the facts) to avoid new, similar violations of this kind are presented in the context of the Yvon case. In the Roux judgment, the Court noted that these measures take the Yvon judgment into account (§14).

• Assessment: no further information or measure appears necessary.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case, if necessary, and to assess the need for individual measures to put an end to the violation and, to the extent possible, erase its consequences for the applicant and join it, if appropriate, to the Yvon case (Application No. 44962/98).

*              *              *

50609/99          Latry, judgment of 23/02/2006, final on 23/05/2006

This case concerns the excessive length of the investigation arising out of a criminal complaint combined with an application to join the proceedings as a civil party lodged by the applicant (violation of Article 6§1).The proceedings at issue began in 1995 and lasted more than 6 years and 10 months.

Individual measures: None (proceedings closed).

General measures: This case presents similarities to that of Etcheveste and Bidart (judgment of 21/03/2002) in Section 6.2 following the measures adopted by the respondent state to avoid new cases of excessive length of criminal proceedings, in particular at the investigatory stage. In particular, as from the entry into force of Law No. 2000-516 of 15/06/2000, judicial inquiries are subject to a proceedings schedule and new rights have been granted to parties (including civil parties) to avoid extension of proceedings.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction; 2.             recalled that the other measures required for execution had already been taken.

*           *           *

- Cases of length of proceedings concerning civil rights and obligations before administrative courts and of lack of an effective remedy

*41828/02         Bitton No. 2, judgment of 04/04/2006, final on 04/07/2006

*3041/02           Consorts Demir, judgment of 04/04/2006, final on 04/07/2006

19249/02          Donnadieu No. 2, judgment of 07/02/2006, final on 07/05/2006

*15110/02         Duhamel, judgment of 11/04/2006, final on 11/07/2006

28738/02          Le Bechennec, judgment of 28/03/2006, final on 28/06/2006

*31520/02         Oberling, judgment of 11/04/2006, final on 11/07/2006

*40391/02         Société Au Service Du Développement, judgment of 11/04/2006, final on 11/07/2006

These cases concern the excessive length of proceedings concerning civil rights and obligations or the determination of criminal charges before administrative courts (violations of Article 6§1). The proceedings were held as from 1988 and two cases were still pending when the European Court delivered its judgments. In the Le Bechennec judgment, the European Court recalled that its case-law requires industrial conflicts to be resolved particularly promptly.

The Bitton, Donadieu, Duhamel and Oberling cases also concern the absence of an effective remedy in relation to the length of the proceedings (violations of Article 13).

Individual measures: In the cases of Oberling and Société Au Service Du Développement, acceleration of the proceedings which were still pending when the European Court delivered its judgments, if they are still pending. The other proceedings are closed.

General measures:

            1) Violations of Article 6§1: These cases present similarities to that of Sapl (judgment of 18/12/2001) and other cases of length of proceedings before administrative courts, closed by Resolution ResDH(2005)63 following the measures announced by the respondent state, in particular Law No. 2002-1138 of 09/09/2002, providing inter alia recruitment of staff, the creation of new courts and budgetary resources and procedural measures to enable administrative courts both to reduce their backlogs more quickly and reduce the flow of incoming cases.

Furthermore, excerpts from the Le Bechennec judgment have been published, together with a commentary, in a widely-read national legal journal. This publication has also been mentioned in the Court of Cassation’s information bulletin (Bulletin d'information de la Cour de cassation, BICC) No. 645 of 01/08/2006. In view of the publicity given to the case-law recalled in these judgments of the European Court, administrative and labour courts competent for industrial conflicts seem to have all they need to take it into account in the future, given that they apply both the Convention and the European Court's case-law directly. Furthermore, the public has also been informed of the requirements of the Convention, as interpreted by the European Court. See also the similar cases (Seguin, Wiot and Julein Ferdinand) in section 6.1 (Volume I)

            2) Violations of Article 13: it is recalled that in the case of Broca and Texier-Micault (judgment of 21/10/2003) the European Court found that a remedy now exists in French law whereby complaint may be made against the excessive length of proceedings before administrative courts, but that applicants could not be required to exhaust it in the framework of applications lodged before 01/01/2003 (as in these cases).

Decisions: The Deputies 1.             agreed to resume consideration of these items, if necessary, at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in these cases; 2.             recalled that the other execution measures required had already been taken.

- 1 case against Georgia

74644/01          Donadze, judgment of 07/03/2006, final on 07/06/2006

The case concerns a violation of the applicant’s right to a fair trial due to the absence of an effective examination of his arguments by Georgian civil courts seised of his case in 2000. His claims against the repeated failure between 1991 and 2000 of his employer, a public administration, to provide him with the office facilities he needed for his work and to pay him the salary supplements he was entitled to, were rejected.

The European Court stressed that the Georgian courts had rejected the applicant’s claims on the only basis of the arguments of the defendant administration, without any serious or in-depth examination of the applicant’s arguments and evidence, thus placing him at a disadvantage as compared with the defendant administration (violation of Article 6§1).

Individual measures: The European Court awarded the applicant just satisfaction covering, on an equitable basis, the global damages sustained and the applicant has expressed no further request for specific individual measures before the Committee of Ministers. Accordingly, such measures do not appear to be needed in this case. Nevertheless, as this case raises the issue of unfair proceedings in Georgia for the first time, information would be useful concerning whether, in Georgian law, it is possible to re-examine proceedings that have violated the Convention, in accordance with Recommendation Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights.

General measures: Since the facts at the origin of this case, the judicial system has changed and a comprehensive reform is under way, in co-operation with the Council of Europe, to bring the Georgian judicial system fully in conformity with the requirements of the European Convention.

In particular, the judicial reform establishes a sequential order of degrees of instance, modifies jurisdictions, institutes magistrate judges, strengthens the High Council of Justice, modifies the disciplinary administration of justice and mechanisms for fighting against corruption, increases the professionalism of judges by modifying the rules on access and establishing special training programmes, increases judicial budgets and modernises the courts. This action plan for reform is planned to be completed in 3-5 years.

• Information is required, in English or in French, about the current state of the reform and the provisions under the new system to guarantee the fairness of civil proceedings involving administrative entities and concerning, in particular, the assessment of arguments by courts and the reasoning accompanying rejection decisions.

• Additional required measures: it also seems necessary to translate and publish the judgment of the European Court and send it out to all relevant civil courts so that they may take into account the considerations of the Court, and to draw their attention to their obligations under the Convention. Further awareness-raising and training activities for Georgian judges might be considered in co-operation with the competent Council of Europe services.

The Secretariat will write to the Georgian authorities inviting them to complete the plan of action for the execution of this judgment.

- 2 cases against Germany

*54810/00         Jalloh, judgment of 11/07/2006 - Grand Chamber

The case concerns inhuman and degrading treatment suffered by the applicant due to the forcible administration of emetics to obtain evidence.

In 1993, police saw the applicant take two tiny plastic bags out of his mouth and give them to someone else for money. They arrested the applicant on suspicion of drug-dealing whereupon he swallowed another bag that he had in his mouth. No drugs being found on the applicant’s person, the prosecutor ordered the administration of an emetic under Section 81a of the German Code of Criminal Procedure. This provision is interpreted by many German courts and writers as a sufficient legal basis to secure evidence through an interference with the suspect’s physical integrity without his or her consent. The applicant was taken to hospital where he refused to take medication to induce vomiting. He was then restrained by four policemen while a doctor forcibly administered emetics by nasogastric tube and by injection. The applicant then regurgitated a small bag containing 0.2182g of cocaine.

The European Court held that by administering emetics by force verging on brutality for the mere purpose of securing evidence of an offence, the authorities had gravely interfered with the applicant’s physical and mental integrity.  It also noted that the authorities fully realised that the applicant was selling drugs in small quantities, as is reflected in the subsequent sentence. Thus recourse to an emetic was not indispensable, as the evidence might have been obtained by less invasive means (elimination by the normal process of nature) (§§77-79) (violation of Article 3).

The case also concerns a violation of the applicant’s right to a fair trial and his right not to incriminate himself due to the decisive reliance on evidence obtained in violation of the Convention. The Court also noted that the public interest in securing the applicant’s conviction could not justify recourse to such a grave interference with his physical and mental integrity  (§§117-119) (violation of Article 6§1).

In the subsequent criminal proceedings the applicant was convicted and sentenced to a one-year suspended prison sentence, reduced to six-months suspended on appeal.

Individual measures: The applicant may apply for reopening of the criminal proceedings under Article 359§6 of the Code of Criminal Procedure. In such reopened proceedings, the use of the evidence obtained by force would be re-assessed in the light of the European Court’s judgment. In addition the European Court awarded the applicant just satisfaction in the sum of 10 000 euros in respect of non-pecuniary damage. Thus no further individual measure seems necessary.

General measures: All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the European Court’s website for judgments in German www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/).

• In the light of the European Court’s conclusions concerning the use of evidence obtained by force in breach of the Convention information is awaited on measures taken or envisaged to prevent new, similar violations as well as on the dissemination of the judgment.

The Secretariat will shortly write to the German authorities with a view to establishing a plan of action for the implementation of the present judgment.

*              *              *

75529/01          Sürmeli, judgment of 08/06/2006 - Grand Chamber

The case concerns the excessive length of certain civil proceedings concerning questions of damages and a monthly pension for injuries sustained in an accident in 1982. Proceedings have lasted more than 16 years before domestic civil courts (violation of Article 6§1). The case also concerns in particular the lack of an effective remedy in German law in respect of lengthy civil proceedings (violation of Article 13).

Individual measures: The applicant alleges that the proceedings still pending are being conducted with bias. Furthermore, he claims that the excessive length of proceedings has resulted in considerable pecuniary and non-pecuniary damage to him not compensated by the just satisfaction awarded by the European Court and for which he is unable to obtain adequate compensation from domestic authorities.

• Information is awaited on these points as well as on possible means to accelerate the proceedings if still pending.

General measures: The judgment of the European Court was sent out by letter of the Government Agent of 09/06/2006 to the courts and justice authorities concerned, i.e. the Federal Constitutional Court, the Federal Court of Justice and all state administrations of justice/ all Ministries of Justice of the Länder (Landesjustizverwaltungen). All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the European Court’s website for judgments in German www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/). It was also published in Neue Juristische Wochenschrift (NJW) 2006, p. 2389 ff.

According to the European Court’s judgment, a bill to introduce into German written law a new remedy in respect of inaction was tabled in September 2005 (§ 138 of the judgment).

• Information is awaited on this legal reform as well as on all other measures taken or envisaged to ensure that new, similar violations are prevented.

The Secretariat will shortly write to the German authorities with a view to establishing a plan of action for the implementation of this judgment.

Decision: The Deputies agreed to resume consideration of this item at their 992nd meeting (3-4 April 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations as well as the individual measures to be taken in order to put an end to the violations and erase, as far as possible, their consequences for the applicant.

- 18 cases against Greece

10162/02          Eko-Elda Avee, judgment of 09/03/2006; final on 09/06/2006

The case concerns the tax authorities’ refusal to pay the applicant company interest for a delay in reimbursing tax which the company had unduly paid.

Reimbursement was claimed in June 1988 and took place in November 1993. In 2000 the Supreme Administrative Court dismissed the applicant’s claim for interest.

The European Court found that the administration’s refusal to pay interest for this delay of more than 5 years in paying back the overpaid tax disregarded the fair balance that must exist between the general and individual interest (violation of Article 1 of Protocol No 1).

Individual measures: The European Court awarded the applicant company pecuniary damages covering the interest due to it from June 1988 until November 1993. No further measure appears necessary.

General measures:

• Measures adopted: Law 2120/1993, promulgated in March 1993 provided the payment by the state of interests in all cases similar to that at issue. In cases pending at the time of its publication, the Law provided that interest would run the on the first day of the month following expiry of a 6-month period after its publication (§13 of judgment). In rejecting the applicant’s claim in 2000, the Supreme Administrative Court held that this Law was not applicable to cases predating its entry into force.

By judgments 1274 and 1275/2002 the Supreme Administrative Court changed its case-law, holding that the state had the obligation to pay interest in all cases of delayed reimbursement of unduly paid taxes, as from the date on which the claimant lodged application with the competent court (§22 of judgment).

• Information awaited: It may be noted that according to the European Court, payment of interest in such cases is considered to be due as from the date on which a claim is lodged with the administration (tax authorities) (see §§31, 37 of judgment and individual measures). Thus, given the direct effect of the European Court’s case-law in Greek law, the authorities are expected to change their practice accordingly. Information is therefore awaited on the wide dissemination of the European Court’s judgment to the tax authorities (possibly with a circular explaining the practical consequences of the judgment) and to all administrative courts, as well as on its publication.

*           *           *

*39295/02         Mouzoukis, judgment of 13/04/2006, final on 13/07/2006

The case concerns a violation of the applicant's right of access to a court in March 2002, in that his appeal on points of law following his conviction and sentence to 8 months' imprisonment suspended, was dismissed by the Court of Cassation as being out of time. The Court of Cassation found that the appeal should have been introduced by the prosecutor within a time-limit counting from the date of delivery of the judgment and not from the date when its text was finalised and thus available to the applicant (violation of Article 6§1).

Individual measures: The applicant is entitled to apply for reopening of the proceedings following the judgment of the European Court, in accordance with Article 525§1(5) of the Code of Criminal Procedure. The European Court awarded the applicant just satisfaction in respect of the non-pecuniary prejudice suffered.

General measures: The case presents similarities to that of AEPI SA (judgment of 11/04/02, final on 11/07/02, section 6.2). By a number of decisions, such as decision 2008/2003 (04/11/2003), the Criminal Chamber of the Court of Cassation expressly accepted and incorporated in its case-law the European Court's judgment in the case of AEPI S.A. As a consequence, the time-limit for appeals on points of law, both for litigants and for public prosecutors, should count from the date of finalisation of the text of the judgment in question. This new case-law by the Court of Cassation is now established (see also §16 of present judgment) and the Greek authorities have assured the Committee that it constitutes a guarantee for the prevention of similar violations, thus rendering any legislative amendment unwarranted. The new case-law has been published in the widely read criminal law journal Poinika Chronika (2004) pp 742-744, as well as in the widely accessed site of the Athens Bar (www.dsa.gr <http://www.dsa.gr/>).

*           *           *

*11919/03         Mohd, judgment of 27/04/2006, final on 27/07/2006

The case concerns the unlawful character of police detention pending expulsion of the applicant, a Bangladeshi national, who had been sentenced to 4 months’ imprisonment and a fine for selling fake CDs.

The European Court found that, as no expulsion order had yet been issued in respect of the applicant, his detention from 04/12/00 to 11/12/00 was not based on any decision setting out the ground, length or modalities of detention. The court further found the applicant’s detention from 09 to 17/02/01 was not provided by law, since on 09/02/01 the Supreme Administrative Court had provisionally suspended the administrative expulsion order (violation of Article 5§1(f)).

Individual measures: The applicant was acquitted on appeal in 2001 and in 2003 the Council of State annulled the administrative expulsion order.

The applicant requested no just satisfaction from the European Court, having reserved his right to do so under domestic law (§27 of judgment). No further measure appears necessary.

General measures:

• Measures adopted: New Aliens’ Law 3386/2005, (in force as from 01/01/06) amended the law in force at the time of the facts of this case, introducing detailed provisions relating to aliens’ administrative expulsion and detention. The main new provisions (Articles 76-82) are the following: (a) administrative expulsion may now in principle be ordered if an alien is sentenced to at least a year’s imprisonment; (b) expulsion may be appealed to the Minister of Public Order who must take a decision within 3 working days; (c) aliens detained pending expulsion are entitled to be informed of the reasons for their detention in a language that they understand and access to a lawyer must be facilitated; they have the right to appeal against the detention before the First-instance Administrative Court; (d) if, for reasons of force majeur, expulsion is not possible, the expulsion and detention are suspended; (e) a number of vulnerable aliens, such as minors whose parents reside lawfully in the country, are now expressly excluded from administrative expulsion.

• Information awaited: (a) On whether current Greek law provides clear conditions under which aliens may be detained where administrative expulsion has been provisionally suspended by a court; (b) On further general measures envisaged or taken for the prevention of new, similar violations. In particular, information is awaited on the possibility of disseminating the Court’s judgment to the Greek police with a note explaining its practical consequences.

Decision: The Deputies noted with satisfaction the general measures already adopted and agreed to resume consideration of this item at their 992nd meeting (3-4 April 2007) (DH),  on the basis of information to be provided by the authorities of the respondent state concerning possible further general measures proposed to prevent new, similar violations.

*           *           *

                   - Cases of length of proceedings before criminal courts

Application	Case	Duration of proceedings	Courts involved	State of proceedings
25559/03	Aggeli, judgment of 02/03/06, final on 02/06/06	September 1997 - February 2003 (5 yrs, > 5 mths)	Athens Criminal Court	Closed
*7544/04	Basoukos, judgment of 27/04/2006, final on 27/07/2006	Since August 2000 (> 5 yrs, 6 mths	Athens Assize Court, Athens Appeal Court	Pending
		Since September 2003 (> 2 yrs, 5 mths	Western Macedonia Assize Court
*9874/04	Horomidis, judgment of 27/04/2006, final on 27/07/2006	Since September 2001 (> 4yrs, 5 mths)	Investigative stage – Indictment Chamber, Athens Criminal Court	Pending
*14309/04	Koleci, judgment of 27/04/2006, final on 27/07/2006	Since March 2001 (c. 5 yrs)	Athens Assize Court, Athens Appeal Court	Pending
37270/02	Simaskou, judgment of 30/03/06, final on 30/06/06	May 1997 - April 2002 (4 yrs, > 11 mths)	Athens Criminal Court	Closed

These cases concern excessive length of proceedings before criminal courts (violations of Article 6§1).

Individual measures: Information is awaited concerning the state of proceedings in the Basoukos, Horomidis and Koleci cases and, where appropriate measures taken or envisaged to accelerate them.

General measures: Greece has already adopted a number of legislative and other measures to accelerate proceedings before criminal courts (see Final Resolution ResDH(2005)66 on Tarighi Wageh Dashti against Greece and 7 other cases, adopted on 18/07/2005).

The Greek authorities have also informed the Committee that legislative measures are envisaged to introduce an effective remedy in Greek law against this kind of violations. More information on this issue is awaited in the context of examination by the Committee of the Manios group of cases (Section 4.2, Volume I).

*           *           *

35828/02          Nastos, judgment of 30/03/2006, final on 30/06/2006

The case concerns the excessive length of certain criminal proceedings (from June 1993 to November 2001 – 8 years and more than 4 months for one degree of jurisdiction) (violation of Article 6§1) as well as a violation of the applicant’s right to a fair trial in that in November 2001 the Athens Assize Court decided, without providing any reasoning, not to award the applicant compensation following his acquittal for pre-trial detention for approximately 18 months (violation of Article 6§1).

Individual measures: The applicant is entitled to request reopening of the domestic proceedings following the European Court’s judgment, in accordance with Article 525A of the Code of Criminal Procedure. The Court has awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damages.

General measures:

                   1) First violation of Article 6§1: Greece has already adopted a number of legislative and other measures to accelerate proceedings before criminal courts (see Final Resolution ResDH(2005)66 on Tarighi Wageh Dashti against Greece and 7 other cases, adopted on 18/07/2005).

• Information provided by the Greek authorities: the Greek authorities have also informed the Committee that legislative measures are currently envisaged to introduce an effective remedy in Greek law against this kind of violations.

• More information on this issue is awaited in the context of examination by the Committee of the Manios group of cases (section 4.2, Volume I).

                   2) Second violation of Article 6§1: The case presents similarities to that of Anastassios Georgiadis, examination of which was concluded following the adoption by Greece of legislative and other measures to prevent similar violations (see Final Resolution ResDH(2004)82, adopted on 22/12/04). It should be noted that all criminal court decisions must obligatorily be reasoned; this has been confirmed by a series of judgments of the Court of Cassation in 2005 (e.g. 7/2005 (Plenary); 629/2005).

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction in this case; 2.             recalled that the other measures required for execution had already been taken.

*           *           *

- Cases of length of proceedings concerning civil rights and obligations before administrative courts and of lack of an effective remedy

Application	Case	Duration of proceedings	Courts involved		State of proceedings
13320/03	Damilakos, judgment of 30/03/06, final on 30/06/06	March 1990 –September 2002 (12 yrs, > 6 mths)		Supreme Administrative Court	Closed
*13332/03	Ekdoseis N. Papanikolaou A.e., judgment of 04/05/2006, final on 04/08/2006	June 1997 – October 2002 (5 yrs, > 3 mths)		Supreme Administrative Court	Closed
10304/03	Kollokas, judgment of 30/03/06, final on 30/06/06	August 1995 –September 2002 (> 7 years)		Supreme Administrative Court	Closed
*25536/04	Mantzila, judgment of 04/05/2006, final on 04/08/2006	November 1994 – January 2004 (> 9 yrs, 2 mths)		Athens Administrative Tribunal; Athens Administrative Court of Appeal; Supreme Administrative Court	Closed

The cases concern the excessive length of proceedings concerning civil rights and obligations before administrative courts (violations of Art 6§1). The Athanasiou and Mantzila cases also concern the absence of an effective remedy whereby they might complain about the length of the proceedings (violation of Article 13)

Individual measures: None: proceedings closed in all cases.

General measures:

• Measures adopted: Greece has already adopted a number of legislative and other measures to accelerate proceedings before administrative courts (see Final Resolution ResDH(2005)65 on Pafitis and others against Greece and 14 other cases, adopted on 18/07/2005).

• Information awaited: Additional problems in this field have been highlighted in more recent judgments (e.g. Manios judgment of 11/03/2004, final on 11/06/2004, Section 4.2, Volume i) and are being addressed by the Greek authorities under the Committee’s supervision. In this context, information is awaited on the progress of the draft Bill on the Administrative Law Code aimed at accelerating administrative court proceedings (mentioned in the Justice Ministry's letter of 30/09/04) and on any other specific measures envisaged to accelerate proceedings before the Council of State.

Moreover, the Greek authorities have informed the Committee that legislative measures are envisaged to introduce an effective remedy in Greek law against this kind of violations.

• More information is awaited.

- Cases concerning excessive length of proceedings before civil courts and lack of an effective domestic remedy

Application	Case	Duration of proceedings	Courts involved	State of proceedings
20898/03	Chatzibyrros and others, judgment of 06/04/06, final on 06/07/06	December 1986 – December 2002 (+16 years)	Larissa First-instance and Appeal Courts; Court of Cassation	Closed
11720/03	Inexco, judgment of 27/04/06, final on 27/07/06	October 1999- (+6 years)	Athens Regional Court	Pending

These cases concern excessive length of proceedings before civil courts and lack of an effective domestic remedy in this respect (violations of Articles 6§1; 13).

Individual measures: Information is awaited on measures taken or envisaged to accelerate proceedings in Inexco, pending since 1999 before the Athens Regional Court.

General measures:

            1) Violation of Article 6§1: Greece has already adopted a number of legislative and other measures to accelerate proceedings before civil courts (see Final Resolution  DH(2005)64 on Academy Trading Ltd and others against Greece and other cases, adopted on 18/07/2005).

            2) Violation of Article 13: The Greek authorities have informed the Committee that legislative measures are envisaged to introduce an effective remedy in Greek law for this kind of violations. More information is awaited and will be examined by the Committee in the context of the Konti-Arvaniti group of cases (Section 4.2, Volume I).

Decision: The Deputies agreed to resume consideration of these items at the 982nd meeting (5‑6 December 2006) (DH), on the basis of information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in these cases if necessary as well as individual measures in the case of Inexco, and to join them, subsequently, with the case of Konti-Arvaniti, to supervise the general measures proposed to prevent new, similar violations of Article 13.

*           *           *

                       - Cases concerning excessive length of proceedings before civil courts

Application	Case	Duration of proceedings	Courts involved	State of proceedings
*27906/04	Filippos Mavropoulos - Pan. Zisis O.E., judgment of 04/05/2006, final on 04/08/2006	April 1989 - October 2003 ( + 14 years and 6 months)	Athens Regional and Appeal Courts	Closed
*40051/02	Kefalas & others, judgment of 27/04/2006, final on 27/07/2006	November 1987 -June 2002 (+14 years and 7 months)	Athens Regional and Appeal Courts; Court of Cassation	Closed

These cases concern excessive length of proceedings before civil courts (violations of Article 6§1).

Individual measures: None: proceedings closed.

General measures: Greece has already adopted a number of legislative and other measures to accelerate proceedings before civil courts (see Final Resolution DH(2005)64 on Academy Trading Ltd and others against Greece and other cases, adopted on 18/07/2005).

The Greek authorities have also informed the Committee that legislative measures are envisaged to introduce an effective remedy in Greek law for this kind of violations. More information is awaited and is examined by the Committee in the context of the Konti-Arvaniti group of cases (Section 4.2, Volume I).

Decisions: The Deputies 1.             agreed to resume consideration of the case of Kefalas and others at their 982nd meeting (DH) (5‑6 December 2006), in the light of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case; 2.             recalled that the other measures required for execution had already been taken; 3.             agreed to resume consideration of the case of Filippos Mavropoulos at their 982nd meeting (DH) (5‑6 December 2006), in the light of a draft final resolution to be drafted by the Secretariat.

*71511/01         Theodorakis and Teodorakis – Tourism and Hotels S.A., judgment of 20/07/2006 –
Friendly settlement

The case concerns the applicants’ complaints relating to the unfairness of liquidation proceedings initiated in 1997 (complaint under Article 6§1) and violation of their right to the peaceful enjoyment of their property (Article 1 of Protocol No. 1).

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of information to be provided by the authorities of the respondent state concerning payment of the sums agreed in this case; 2.             noted that the friendly settlement does not require any other commitment from the respondent state.

- 13 cases against Hungary

32768/03          Csáky, judgment of 28/03/2006, final on 28/06/2006

This case concerns the excessive length of the applicant’s detention pending trial between 2002 and 2004 in view of the lack of sufficient reasons to justify it, in particular between October 2003 and October 2004 when the applicant was detained in a psychiatric detention facility, as he had been diagnosed with chronic paranoid schizophrenia (violation of Article 5§3). The European Court noted in this respect that after the investigation was closed in September 2003, the risk of collusion was no longer arguable. Furthermore, the Court found that the domestic courts should have made their assessment in the light of the applicant’s serious psychiatric condition and should have considered placing him in a civilian institution instead of continuing to reiterate that, given the seriousness of the charges against him, there was a risk that the applicant would abscond.

Individual measures: The applicant was released in October 2004. In June 2005 the criminal proceedings against him were stayed as he was not mentally capable of standing trial. The European Court awarded hm just satisfaction in respect if the non-pecuniary damage he suffered on account of the excessive length of his pre-trial detention.

• Assessment: This being the case, no additional individual measure appears to be necessary.

General measures: This case presents similarities to that of Maglódi (judgment of 09/11/2004), scheduled for examination at the 982nd meeting (December 2006), in the context of which the Hungarian authorities have been invited to provide examples showing that domestic case-law effectively takes into account the judgments of the European Court as regards the grouds for extending detention pending trial, to confirm the efficiency of the measures already adopted in 2003 and 2005 (new Code of Criminal Procedure, which entered into force on 01/07/2003, training for judges in 2005). However, in view of the particularities of the present case, it seems useful to publish the judgment of the European Court and to send it out to the competent courts.

• Information is awaited in this respect, as well as on other possible general measures envisaged or already taken by the authorities.

 

*           *           *

                       - Cases of length of judicial proceedings

*4564/03           Fodor, judgment of 23/05/2006, final on 18/07/2006

*30081/02         Kalló, judgment of 11/04/2006, final on 11/07/2006

*37494/02         Karácsonyi, judgment of 18/04/2006, final on 18/07/2006

*14966/03         Keszthelyi, judgment of 25/04/2006, final on 25/07/2006

*2462/03           Kocsis, judgment of 11/04/2006, final on 11/07/2006

*23992/02         Kristóf, judgment of 11/04/2006, final on 11/07/2006

*442/03            Magyar (No. 2), judgment of 04/04/2006, final on 04/07/2006

*10501/03         Ratalics, judgment of 11/04/2006, final on 11/07/2006

*39073/02         Vondratsek, judgment of 11/04/2006, final on 11/07/2006

*11213/03         Zaveczky, judgment of 25/04/2006, final on 25/07/2006

These cases concern the excessive length of proceedings concerning civil rights and obligations, some before labour courts (violations of Article 6§1).

Proceedings began between 1986 and 1994 and some of them ended, between 2000 and 2005.

The European Court recalled its case-law according to which industrial conflicts must be resolved particularly promptly.

Individual measures: If they are still pending, acceleration of the proceedings in the cases of Fodor, Keszthelyi, Magyar (n°2) and Zaveczky, which were still pending when the European Court delivered these judgments. Information is awaited in this respect.

General measures: These cases present similarities to those in the Tímár group which will be proposed for examination at the 982nd meeting (December 2006).

Decisions: The Deputies 1              agreed to resume consideration of these items at their 892nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in these cases if necessary; 2.             agreed to join these cases, at the same meeting, to the Timár case with a view to examining: - the general measures proposed, first, to prevent new violations linked to the excessive length of civil proceedings and secondly, to introduce an effective remedy in national law whereby complained may be made of such excessive duration; as well as - individual measures to accelerate proceedings in these cases which are still pending.

*           *           *

                       - Cases of length of criminal proceedings

*31701/02         Klement and others, judgment of 27/07/2006, final on 22/08/2006

*32763/03         Kocsis László, judgment of 25/04/2006, final on 25/07/2006

*30089/03         Mohai, judgment of 11/04/2006, final on 11/07/2006

These cases concern the excessive length of certain criminal proceedings (violation of Article 6§1) which began between 1991 and 1993 and ended between 2002 and 2003 (between 9 years and 10 years and 9 months). 

Individual measures: None (no pending proceedings).

General measures: The cases present similarities to the Németh case (judgment of 13/01/2004) closed by Resolution ResDH(2006)48. According to the Hungarian authorities, the length of criminal proceedings does not constitute a large-scale problem, as shown by the small number of cases pending before the European Court concerning this issue. The judgment of the European Court in the Nemeth case was published on the website of the Ministry of Justice www.im.hu and was sent to the Office of the National Judicial Council for dissemination to the competent courts.

The issue concerning the introduction of an effective remedy against the excessive length of judicial proceedings in Hungary is being examined within the framework of the Tímár case, which will be presented at the 982nd meeting (December 2006).

Decision: The Deputies 1.             agreed to resume consideration of these items at their 982nd meeting (5-6 December 2006) (DH) in the light of  further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction in these cases ; 2.             considered that no other specific measure of execution was required.

- 11 cases against Italy

*10180/04         Patrono, Cascini and Stefanelli, judment of 20/04/2006, final on 20/07/2006

The case concerns the violation of the applicants’ right of access to a court in 2001 in that they were unable to bring criminal proceedings for defamation against members of parliament enjoying parliamentary privilege and thus could not maintain their right to redress by becoming civil parties.

The European Court found that the applicable law concerning parliamentary immunity pursued a legitimate aim but that it had been applied disproportionately in this case as the utterances at issue were not strictly linked to the exercise of the parliamentarians’ role as legislators (violation of Article 6§1).

Individual measures: The European Court awarded the applicants just satisfaction in respect of non‑pecuniary damage sustained.

General measures: This case presents similarities to those of Cordova No. 2, DeJorio and Ielo (Sections 6.2 and 3.a). When one of the houses of parliament declares that an utterance is covered by parliamentary privilege as provided by Article 68§1 of the Constitution, a judge may seise the Constitutional Court to obtain determination of a conflict between the powers of the state. When thus seised, the Constitutional Court must decide on the compatibility between the parliamentary debate and the competence of the judicial branch. All the violations found are due either to the judge’s refusal to raise the issue (as in the present case) or to the fact that the case-law of the Constitutional Court was out of date. On this latter point it should be noted that the case-law has developed (as the European Court’s judgments acknowledge) so that today the position of Italy’s senior jurisdiction is that it is not right to extend parliamentary privilege to utterances not linked to the exercise of the parliamentary function.

• Assessment: this development in constitutional case-law, together with the European Court’s interpretation of the balance to be struck between the freedom of parliamentary debate and the right to a court, calls for extensive publication and wide dissemination of the European Court’s judgment in judicial and legal circles.

 

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this item at their 2nd DH meeting in 2007 at the latest, in the light of further information to be provided by the authorities of the respondent state concerning the publication and of the European Court’s judgment  and its dissemination to the relevant authorities to draw the authorities’ attention to their obligations under the Convention.

*           *           *

64088/00          Pilla, judgment of 02/03/2006, final on 02/06/2006

The case concerns the courts’ delay in giving effect to a presidential decree which should have resulted in the remission of a part of the applicant’s sentence, with the result that his detention from 14/02/1998 to 7/07/1998 was irregular. In fact the court decision finally confirming his entitlement to benefit from the remission was not pronounced until 14/12/1999, i.e. after the expiry of the full term of his sentence, on 7/07/1998 (violation of Article 5§1).

The case also concerns the absence of any sufficiently sure means of compensation for the irregular detention (violation of Article 5§5).

Individual measures: The applicant is no longer detained. The European court awarded him just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: this being the case, no further measure appears necessary.

General measures:

            1) Irregularity of the detention: The fact that the violation was due to the lateness of a court decision raised the question as to whether this case should belong to the group concerning the excessive length of judicial proceedings.

            2) Absence of means of redress:

• Information is awaited concerning measures taken or envisaged to prevent new, similar violations, including the possibility of awarding compensation under Article 314 of the Code of Criminal Procedure which covers compensation for irregular detention.

The attention of the appropriate authorities should urgently be drawn to the problems raised, in particular through the wide dissemination if the European Court’s judgment.

 

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this item at their 2nd DH meeting in 2007in the light of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations.

*15535/02         Chizzotti, judgment of 02/02/2006, final on 03/07/2006

The case concerns the absence of an effective remedy whereby the applicant might claim salary arrears due from a company placed under administration in 1995 and contest the actions of the administrators. According to the applicable law at the material time (since modified, see below) no appeal was possible until the official register of creditors was deposited (violation of Article 13).

Individual measures: The applicant was thus deprived of a remedy until 30/06/1999, when the liquidators deposited the register of creditors. However the applicant, once he was able to do so, lodged no appeal against the distribution of the assets (§13 of the judgment) and accordingly the final balance-sheet and the plan for the distribution of assets was deposited and became final in respect of his claims.

General measures: The legislation at the origin of the violation (Law No. 95/1979) was repealed by Legislative Decree No. 270 of 08/08/1999, which introduced a new procedure for extraordinary administration including not least the possibility for all creditors to contest the actions of the liquidator before the courts (Article 17). The European Court’s judgment in the Saggio case, which raises the same problem, was published in the Official Bulletin of the Ministry of Justice, No. 13 of 17/07/2002 and brought to the attention of the Italian judicial authorities.

Decision: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary; 2.             recalled that the other execution measures required had already been taken.

*           *           *

- Cases concerning bankruptcy proceedings

*77924/01         Albanese, judgment of 23/03/2006, final on 03/07/2006

*77955/01         Campagnano, judgment of 23/03/2006, final on 03/07/2006

*77962/01         Vitiello, judgment of 23/03/2006, final on 03/07/2006

These cases concern restrictions, ordered in proceedings to establish the applicants’ bankruptcy, of various rights:

- Suspension of electoral rights for five years counting from the declaration of bankruptcy: the European Court found that this measure, which is applicable to bankrupts even in the absence of deceit or fraud on the sole basis of their insolvency, resulted in the marginalisation of the applicants and had the appearance of a moral sanction. Founded on a presidential decree, No. 223 of 20/03/67 and modified by Law No. 15 of 16/01/92, this provision does not in the Court’s view pursue any legitimate aim (violations of Article 3 of Protocol No. 1).

- Limits on the personal capacity of the applicants: as a result of being automatically registered as bankrupt, the applicants are barred from a number of professional activities (managing agent of a property, stockbroker, auditor, arbitrator, administrator or liquidator o commercial companies) as well as from the rolls of certain professions (advocate, notary, commercial adviser). They may not obtain rehabilitation and thus put an end to these restrictions until five years after the closure of the bankruptcy proceedings. The European Court considered that this interference, which is based on Article 50 of the Bankruptcy Act, was not necessary in a democratic society (violation of Article 8) and furthermore noted that the applicants disposed of no effective remedy (violation of Article 13).

Individual measures: Information is awaited as to whether as a result of the recent reform (see below) the restrictions on the applicants’ rights have been lifted.

General measures: Legislative Decree No. 5/2006, adopted on 9/01/2006 seems to have resolved the questions raised in the Court’s judgments in these cases: in particular Article 152 repeals the provisions concerning the suspension of electoral rights while Article 47 removes the restriction on personal capacity.

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases if necessary, as well as individual measures to put an end to the violation and, to the extent possible, erase its consequences for the applicants.

*           *           *

                       - Cases concerning constructive expropriation

*176/04            De Sciscio, judgment of 20/04/2006, final on 20/07/2006

*9119/03           Genovese, judgment of 02/02/2006, final on 03/07/2006

35941/03          Gianni and others, judgment of 30/03/2006, final on 30/06/2006

35638/03          Immobiliare Cerro S.a.s., judgment of 23/02/2006, final on 23/05/2006

20935/03          Izzo, judgment of 02/03/2006, final on 02/06/2006

All these cases concern the de facto expropriation of land belonging to the applicants following their emergency occupation, subsequently prolonged, by the public authorities. The lawfulness of such expropriation could not be tested because there was no formal need of transfer of the property and on account of the slowness of subsequent court proceedings. The European Court found this situation to be incompatible with the exercise of the applicants' right to the peaceful enjoyment of their property (violations of Article 1 of Protocol No. 1).

Individual measures: Pending the proceedings on the issue of just satisfaction (so far reserved by the Court), the Italian authorities are invited urgently to find adequate means to erase the continuing effects of the violations found in the present cases in respect of the applicants. Identification of individual measures may be part of the solution of the general problem (see below) as it requires the setting up of an effective domestic system to secure the return of property expropriated de facto and/or to pay adequate compensation in respect of expropriation or damages.

General measures: see the case of Belvedere Alberghiera S.R.L. and other similar cases, Section 4.2, Volume I. In this respect, at the 970th meeting (July 2006), the Deputies agreed to resume consideration of this group of cases on the basis of a draft interim resolution prepared by the Secretariat and distributed on 30/06/2006.

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), and to join them, at the same meeting, with the case of Belvedere Alberghiera S.R.L to supervise the general measures proposed to prevent new, similar violations, as well as the individual measures to put an end to the violations and erase, as far as possible, their consequences for the applicants.

*           *           *

- Case relating to the failure to enforce judicial eviction orders against tenants

*69502/01         Mazzei, judgment of 06/04/2006, final on 06/07/2006

This case concerns the sustained impossibility for the applicant (for almost 6 years) to secure enforcement of a court decision ordering his tenant’s eviction, mainly on account of the difficulty in obtaining the assistance of the police (violation of Article 6§1 and Article 1 of Protocol No. 1).

Individual measures:  The applicant recovered his apartment in 2000.

General measures:

▪ Evaluation of the situation: the problem of the sustained impossibility for these applicants to recuperate their apartments is reducing progressively. Statistical data published by the Ministry of the Interior for 1994 ‑ 2004 show both improved efficiency in enforcement, evictions having increased by 27,53%, and reduced recourse to eviction, with a 35,19% reduction in applications to evict tenants and a 35,93% reduction in eviction orders by courts. The data concerning 2005 and the present year show that requests for evictions have increased (+ 28,62%), as well as forced evictions (+ 16,78) and a reduction in eviction orders by courts (- 8,15) (source : http://pers.mininterno.it/dcds/index.htm).

The same positive tendency is revealed with regard to the case-load of the European Court: new applications are tailing off and the last of them concern situations having their origin some time ago.

Amongst the main causes of the violations found by the European Court, the staggering of evictions is no longer a factor: prefects may no longer hold back the assistance of the forces of order. Another case of delay, the legal suspension of evictions, is now applied much less widely. In its judgment No. 155 of 2004, the Constitutional Court held that such legislative suspensions could only be justified if applied for limited duration, and are henceforth applied under the supervision of the Constitutional Court.

A recent law of this kind, No. 148/2005, seems to have had no practical effect in terms of suspending evictions, while another, No. 86/2006, limited suspension to just three cities: Milan, Rome and Naples. Its application is moreover further limited by the fact that only a small number of very restricted categories of persons may benefit from suspension of eviction: persons over 65, severely handicapped persons and those who do not have the means to pay the rent. It should be noted that the most recent legislation of this kind has also provided economic help for tenants or tax advantages for landlords. As a consequence it may be stated that since 2005 the suspension of evictions has had a negligible effect.

• Domestic remedies: present situation:

            1) As regards action against tenants: Article 1591 of the Civil Code obliges a tenant to compensate for any damage sustained as a result of delays in restoring the property to the landlord. Compensation is limited to a sum equivalent to the amount of the rent paid at the time of expiry of the lease, indexed to the cost of living and increased by 20% for each rental period during which the landlord could not enjoy his property (Law No. 61/1989). The Court of Cassation has established that such a tort may be proved simply by demanding a higher rent, fixed on the basis of the market rate (judgment No. 1032/1996) and that the notice to quit remains valid from the date of expiry of the lease at issue, independently of the judge’s decision on enforced eviction (judgment No. 10560/2002). Regarding Article 1591 of the Civil Code, the European court noted that (see judgment in Lo Tufo, 21/04/05, §69) national law makes it possible to erase the material consequences of violations and consequently rejected applications for just satisfaction in respect of pecuniary damage.

            2) As regards action against the state in respect of violations of Article 1 of Protocol No. 1: According to the case-law of the Court of Cassation, the state’s obligation to guarantee the enforcement of judicial decisions must be discharged most rigorously; to compensate the citizen is the essential basic value of such redress. In its judgment No. 3873/2004 the Court of Cassation established that it was for the administration, not the landlord, to demonstrate the impossibility of bringing in the forces of order to enforce eviction orders. Such impossibility does not exclude the administration’s responsibility in exceptional or unpredictable circumstances. Possible “permanent crisis” situations, such as those which may affect the judiciary or the administration, do not cancel out their responsibility for prejudice sustained, but on the contrary reinforce its presumption.

            3) As regards action against the state in respect of violations of Article 6§1: The state’s liability for prejudice sustained as a result of the excessive length of court proceedings is provided by the “Pinto Act” (Law No. 89/2001). The case-law of the Court of Cassation confirms that this Act is applicable to delays or shortcomings in the enforcement of judicial eviction orders. In its inadmissibility decision in Proveddi against Italy, the European Court found that applicants in cases of this kind must have recourse to the Pinto Act to satisfy Article 35§1 of the Convention, in respect not only of Article 6§1 but also of Article 1 of Protocol No. 1.

• Information is awaited concerning the applicability of this means of redress to cases in which eviction is temporarily barred by legislative suspension.

The European court’s judgment in the Immobiliare Saffi case has been published, not least in the academic legal journal Rivista internazionale dei diritti dell’uomo, No. 1/2000, pp. 252 – 265.

- 2 cases against Latvia

*62393/00         Kadiķis No. 2, judgment of 04/05/2006, final on 04/08/2006

The case concerns the conditions of the applicant’s administrative detention in the temporary confinement suite of the Liepaja State Police station from 28/04 to 13/05/2000 (15 days). The European Court noted that the cell in which the applicant was detained, usually with 3 or 4 other people, measured 6m², of which less than half was available for all the co-detainees to move about in. There was no natural light and the ventilation system did not work properly, stopping often. There was no exercise yard and the only time the applicant could leave the cell was to go to the lavatory or to the washroom. The applicant had no bed, but had to share a wooden platform 2.1m x 1.7m with his cellmates. There was no bed-linen and the prisoners slept fully clothed on bare boards.

During the applicant’s detention, only one proper meal per day was served and it was prohibited for the detainees to receive foodstuffs from outside. Finally, there was neither drinking water nor even running water in the cell.

The European Court found that, although there was no evidence of any intention on the part of the Latvian authorities deliberately to humiliate or diminish the applicant, this treatment was nonetheless degrading (violation of Article 3).

The case also concerns the absence of an effective remedy whereby the applicant might complain about the conditions of detention (violation of Article 13).

Individual measures: None: the applicant was freed in May 2003. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained.

General measures:

                   1) Violation of Article 3: The Latvian authorities are invited to provide information on measures taken or envisaged to ensure that the conditions in temporary confinement suites are in conformity with the Convention’s requirements.

                   2) Violation of Article 13: They are also invited to ensure that an effective remedy enabling complaints against the conditions of administrative detention is available.

In any event, publication and dissemination of the European Court’s judgment to the relevant authorities and courts is expected, possibly accompanied by a circular or note explaining the problems identified by the European Court

The Secretariat will write to the Latvian authorities inviting them to present an action plan for the execution of this judgment.

*           *           *

66820/01          Svipsta, judgment of 09/03/2006; final on 09/06/2006

The case concerns the remanding in custody of the applicant who was suspected of having instigated the murder of the Head of Division at the National Privatisation Agency who was killed in 2000. The European Court found the following violations:

- the applicant’s detention on remand from 18/05/2001 to 11/10/2001 was unlawful as it was not authorised by a court (violation of Article 5§1);

- the whole period of detention on remand without adequate justification was excessively long (2 years, 3 months and 13 days) (violation of Article 5§3);

- there was no effective judicial supervision of the applicant’s detention on remand, given the insufficient reasoning of the detention orders, the fact that defence counsel could not have access to evidence arising out of the investigation and the absence of any remedy at the judgment stage (violation of Article 5§4).

Individual measures: The applicant is no longer detained on remand: on 11/09/2003 she was convicted and sentenced to 10 years’ imprisonment.

Before the European Court the applicant stated that the finding of multiple violations of her rights under the Convention constituted sufficient vindication in respect of the non-pecuniary damage she had sustained.

• Assessment: This being the case, no further individual measure seems necessary.

General measures: This case presents similarities to that of Lavents (judgment of 28/11/2002, in Section 6.1 at the 966th meeting (June 2006)) in respect of which the Latvian authorities adopted the following measures:

            1) Violations of Articles 5§3 and 5§4:

• Legislation: The new Law on Criminal Procedure entered into force on 01/10/2005. The new law introduces a post of investigative judge whose main function is to supervise the observance of human rights in criminal proceedings. The judge decides on the application and extension of certain means of restraint (detention, house arrest, placement in an institution) as well as on complaints related to other means of restraint (e.g. restraint order, bail, conditions of police supervision). The new law also imposes several time-limits for pre‑trial detention.

• Training and awareness-raising: Issues relating to human rights in detention are included in the training programme for judges and prosecutors. Moreover, a research paper concerning the recent case-law concerning detention issues has been distributed to all participants in training.

In May 2003, the Human Rights Institute of the University of Latvia organised a Seminar on detention questions for judges, prosecutors, practising lawyers and representatives of government and Parliament.

            2) Violation of Article 5§1: In addition to the measures already taken by the Latvian authorities in Lavents – in which the Court found no violation of Article 5§1 – publication and dissemination of the European Court’s judgment appear necessary.

• Information is thus awaited on the publication of the judgment and its dissemination to the relevant national authorities.

Decision: The Deputies agreed to resume consideration of this item at the latest at their 992nd meeting (3-4 April 2007) (DH),  in the light of further information to be provided by the authorities of the respondent state concerning the publication and dissemination of the European Court’s judgment to the authorities concerned so as to draw their attention to their obligations under the Convention.

- 2 cases against Luxembourg

*60255/00         Pereira Henriques, judgment of 09/05/2006, final on 09/08/2006

The case concerns the lack of an effective investigation to establish the causes, and possibly punish the persons reasonable for, the death of the applicants’ husband and father in 1995, resulting from the collapse of a wall during demolition work (violation of the procedural aspect of Article 2).

The European Court held that in the specific circumstances the prosecution did not conduct a thorough investigation, given that it must have known that, as no intentional offence had been found by the criminal courts, the family of the deceased would be unable under Luxembourg law to seek explanations from the contractors as to their acts or omissions.

Furthermore, the applicants had no effective remedy whereby they might seek compensation following the ineffective investigation (violation of Article 13).

Individual measures: The European Court granted the applicants just satisfaction in respect of the non-pecuniary damage they suffered due to the violations. However, it held that it cannot speculate as to what the outcome of the proceedings might have been had the investigation been effective; hence, it said that it would be inappropriate to award the applicants compensation for pecuniary damage.

• Information is awaited as to the measures taken by the Luxembourg authorities to erase, to the extent possible, the consequences of the violations.

General measures:

• Information is awaited as to the measures taken or envisaged to avoid new, similar violations.

The Secretariat will shortly write to the Luxembourg authorities with a view to establishing a plan of action for the implementation of this judgment.

*           *           *

*40327/02         Casse, judgment of 27/04/2006, final on 27/07/2006

This case concerns the excessive length of certain civil proceedings begun in 1996 and still pending when European Court rendered judgment. These proceedings had been postponed pending the completion of certain criminal proceedings (also begun in 1996 and still pending on the day of the Court’s judgment), the length of which is also excessive (violation of Article 6§1).

The case also concerns the lack of effective remedy (violation of Article 13).

Finally, the case concerns the fact that the applicant was not informed of the nature of the accusations against him. In fact he has been under accusation since 1996, but has never been charged, or summonsed before the investigating magistrate.

Individual measures: acceleration of the proceedings at issue.

• Information is awaited in particular on the acceleration of the proceedings.

General measures:

            1) Violation of Article 6§1: The examination of the general measures concerning the excessive length of criminal proceedings, in particular of the pre-trial investigation, is currently being examined in the context of the Schumacher and Rezette cases (next examination at the 982nd meeting, December 2006).

            2) Violation of Article 13: The examination of the general measures on this point is also being examined in the context of the Schumacher and Rezette cases.

            3) Violation of Article 6§3a):

• Information is awaited on the measures taken or envisaged in order to avoid new, similar violations.

- 5 cases against Moldova

*18944/02         Corsacov, judgment of 04/04/2006, final on 04/07/2006

The case concerns the infliction of torture on the applicant, aged seventeen at the material time, following his arrest in July 1998. The European Court noted that he had been subjected to acts of particularly serious violence by the police including in particular beating on the soles of his feet and had sustained a number of wounds (violation of Article 3). The applicant spent approximately 70 days in hospital at various times between July and November 1998. His health deteriorated subsequently to the point that he was categorised as invalid to the second degree (loss of working capacity of 50-75%).

The case also concerns inadequacy of the investigation into the applicant’s allegations, which lasted three years. The European Court noted a number of contradictions as well as serious and unexplained omissions and concluded that the conclusions of the investigation had not been established (violation of procedural aspects of Article 3).

The case furthermore concerns the absence of effective remedies in respect of the allegations of ill-treatment. In fact, as the investigation had concluded that the acts of the policemen had been legal, the applicant had no means of seeking compensation (violation of Article 13).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non‑pecuniary damage suffered as a result of the torture and of the failure of the authorities properly to investigate the case. The internal investigation was re-opened after the admissibility decision of the European Court in this case.

• Information is expected on the state of these proceedings.

General measures:

            1) Violation of Article 3 (ill-treatment while in police custody):

• The authorities are invited to provide information about measures taken or envisaged to remedy the shortcomings identified by the European Court, in particular existing and planned legal regulations related to criminal, civil and disciplinary responsibility for ill-treatment. Training and awareness-raising measures for law-enforcement officers, prosecutors and judges would also appear necessary. Changes in the legal and regulatory framework governing police activities may also be appropriate to prevent new, similar violations.

            2) Violation of Article 3 (lack of effective investigation):

• The authorities are invited to provide information on measures taken or envisaged to remedy the shortcomings identified by the European Court with respect to the effectiveness of the investigation. In particular, the investigation concerning alleged ill-treatment by state agents should lead to identification and punishment of those responsible and be effective, thorough and expeditious. The authorities may therefore, if appropriate, consider changes in the legal and regulatory framework governing this kind of investigation. Appropriate training and awareness-raising measures would also appear necessary.

            3) Violation of Article 13 (lack of remedy to claim compensation): At the material time, it was necessary to establish that the act in question was illegal in order to claim compensation for damage sustained.

•  The authorities are invited to provide information on current legislation governing compensation for ill-treatment by state agents and, if appropriate, to ensure the availability of an appropriate remedy enabling civil action to claim compensation in such situations.

The publication and dissemination of the Court's judgment to the relevant authorities and domestic courts is also expected, possibly together with circulars or explanatory notes stressing the problems identified by the European Court.

The Secretariat will write to the Moldovan authorities inviting them to present an action plan for the execution of this judgment.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case, if necessary, as well as  individual measures to put an end to the violation and, to the extent possible, erase its consequences for the applicant and the general measures proposed to prevent new, similar violations.

*           *           *

37431/02          Josan, judgment of 21/03/2006, final on 21/06/2006

*19253/03+       Macovei and others, judgment of 25/04/2006, final on 25/07/2006

The Josan case concerns violations of the applicant’s right to a fair trial and to the peaceful enjoyment of her possessions due to a decision taken in October 2002 by the Supreme Court of Justice annulling a final judgment rendered by the appeal court ordering payment of 155 868 MDL to the applicant (violations of Article 6§1 and Article 1 of Protocol No. 1).

In the Macovei case, final decisions given in favour of the applicants concerning payment of pension arrears by a pension company were deprived of effect by a subsequent judgment given in favour of the opposing party (violations of Article 6§1 and Article 1 of Protocol No. 1).

Individual measures:

            1) Josan case: The Supreme Court of Justice ordered the reopening of the case. When the European Court pronounced its judgment, these proceedings were still pending. The European Court granted the applicant just satisfaction in respect of pecuniary damage (covering the payment of 155 868 MDL plus interest) and non-pecuniary damage sustained as a consequence of the annulment.

            2) Macovei case: The European Court granted the applicants just satisfaction in respect of the pecuniary damage (covering the pension arrears due) and non-pecuniary damage sustained.

• Assessment: This being the case, no further individual measures seem necessary.

General measures: These cases present similarities to the Roşca case (judgment of 22/03/2005, section 6.1, Volume I) in which the Moldovan authorities have already adopted the necessary general measures. The law in force at the material time has since been repealed by the new Code of Civil Procedure which entered into force on 12/06/2003. Under the new Code, final judgments may only be set aside in case of a friendly settlement in a case before the European Court and if the government considers that the national judgment at issue is in breach of the rights enshrined in the Moldovan Constitution or the Convention.

Decisions: The Deputies 1.             agreed to resume consideration of these items at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases; 2.             recalled that all other execution measures have already been taken.

*           *           *

- Cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

*3021/02           Lungu, judgment of 09/05/2006, final on 09/08/2006

3417/02            Lupacescu and others, judgment of 21/03/2006, final on 21/06/2006

These cases concern the violation of the applicant’s right to effective judicial protection on account of the protracted failure to enforce final judicial decisions in their favour in 2002 (violations of Article 6§1) as well as the consequent breach of their right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1).

Individual measures: The judgments were finally enforced between 1997 and 2005.

General measures: These cases present similarities to those in the Luntre group (judgment of 15/06/2004, scheduled for examination at the 982nd meeting, December 2006) in which the Moldovan authorities have already and are still adopting measures concerning the failure to enforce final judicial decisions.

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases and to join them, at the same meeting, with the Luntre group of cases to examine the general measures proposed to prevent new, similar violations as well as individual measures to put an end to the violation and, to the extent possible, erase its consequences for the applicant.

- 2 cases against the Netherlands

*50435/99         Rodriguez Da Silva and Hoogkamer, judgment of 31/01/2006, final on 03/07/2006

The case concerns a violation of the applicants’ right to family life due to the refusal by the respondent state to issue a residence permit to the first applicant, a Brazilian national (violation of Article 8).

The first applicant came to the Netherlands in 1994 and lived with her partner. The second applicant was born from this relationship in 1996. In 1997 the relationship ended. The father was awarded parental authority over the child. The first applicant stayed in the Netherlands and takes care of the second applicant for three to four days a week. The rest of the week the second applicant is cared for by her paternal grandparents.

The first applicant did not apply for a residence permit until 1997. Thus at the time the child was born, she was residing illegally in the Netherlands. The application for a permit of 1997 was denied by the Netherlands authorities, a decision which was confirmed in “objection proceedings” and before the domestic courts. In 2002 she applied once again for a residence permit, which was again refused.

Parental authority having been awarded to the father, the first applicant is not able to take the second applicant with her to Brazil without his permission, which will not be forthcoming.

Partly in the light of this, the European Court considered that “in view of the far-reaching consequences which an expulsion would have on the responsibilities the first applicant has as a mother, as well as on her family life with her young daughter […], in the particular circumstances of the case the economic well-being of the country does not outweigh the applicants’ rights under Article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of [the birth of the second applicant]” (see §44).

Individual measures: According to the applicants’ lawyer, the first applicant has not yet received a residence permit.

• Information is awaited on the time-frame for the issuing of this permit.

General measures: Given the direct effect of European court’s judgments in the Netherlands, all authorities concerned are expected to align their practice to the present judgment.

• Information is therefore awaited on the publication of the judgment and its dissemination to immigration authorities and courts.

Decision: The Deputies decided to resume consideration of this case at their 982nd meeting (DH) (5‑6 December 2006) on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case as well as the individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicants.

*           *           *

*50252/99         Sezen, judgment of 31/01/2006, final on 03/07/2006

The case concerns a violation of the applicants’ right to family life due to the refusal by the respondent state to prolong the residence permit of the first applicant, the husband of the second applicant (violation of Article 8).

The first applicant came to the Netherlands in 1989, where he married the second applicant who had been in the Netherlands since the age of seven. The husband received a residence permit for the purposes of forming a family unit and working in the Netherlands. In 1992, the applicant ex jure acquired the right to remain in the Netherlands indefinitely, a right which would expire when he would no longer actually form part of the family unit. In 1993 the first applicant was convicted of a drug offence and sentenced to four year’s imprisonment, of which he served approximately two years. He has not re-offended.

Due to marital problems, the applicants did not live together for some time in 1995/1996. During that period however, their second child was conceived and in June 1996 the applicants resumed cohabitation. In May 1996 the applicants applied for an extension of the first applicant’s residence permit. This was refused.

The first applicant had lost his indefinite right to remain in the Netherlands when he ceased to live with his wife. The fact that cohabitation had been resumed did not revive this right ex jure. In view of the first applicant’s criminal conviction the authorities considered that it was justified to deny him further residence. The interference with the first applicant’s right to respect for his family life was held to be justified in the interests of public order and for the prevention of crime.

The European Court found that the second applicant and the applicants’ children cannot, for several reasons, be expected to follow the first applicant to Turkey. Furthermore, the Court found that the present case concerns a functioning family unit where the parents and children are living together, the splitting up of which is an interference of a very serious order with the right protected by Article 8 of the Convention. In conclusion, the Court held that the respondent state failed to strike a fair balance between the applicants’ interests on the one hand and its own interests in preventing disorder and crime on the other.

Individual measures: According to the applicant’s lawyer, the first applicant has not yet received a residence permit.

• Information is awaited on the time-frame for issuing this permit.

General measures: Given the direct effect of European Court’s judgments in the Netherlands, all authorities concerned are expected to align their practice to the present judgment.

• Information is therefore awaited on the publication of the judgment and its dissemination to immigration authorities and courts.

Decision: The Deputies decided to resume consideration of this case at their 982nd meeting (DH) (5‑6 December 2006) on the basis of further information to be provided by the authorities of the respondent state concerning the individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicants.

- 17 cases against Poland

35014/97          Hutten-Czapska, judgment of 19/06/2006 - Grand Chamber

This case concerns a violation of the applicant’s right to the peaceful enjoyment of her possessions (violation of Article 1 of Protocol No. 1). Despite several civil and administrative actions brought between 1992 and 2002 the applicant, who had inherited her parent’s house in Gdynia in 1990, could neither secure the re‑housing of the tenants who had been assigned apartments in her house nor freely fix the amount of their rent. This resulted from a law applied to private property in Poland instituting rent controls and restrictions on the termination of leases (a law of 1994, replaced by a 2001 law and subsequently modified in 2004 following certain decisions by the Constitutional Court). This system, which had its origins in laws adopted during the communist period, fixed such a low rent ceiling that landlords could not even cover the cost of maintaining their buildings, still less make a profit.

The European Court (Grand Chamber) concluded that the finding of a violation did not reside solely in the question of the amount of the rent (unlike the conclusions of the chamber in its judgment of 22/02/2005) but was rather the result of the combined effect of the unsatisfactory provisions on the fixing of rent and the various restrictions on the right of landlords in the matter of terminating leases, the financial burdens imposed upon them and the total absence of any legal mechanism whereby they might compensate or mitigate losses sustained on maintenance or to obtain, where justified, any state assistance to that end.

In the light of the foregoing, and having regard to the effects of the operation of the rent-control legislation during the whole period under consideration on the rights of the applicant and other persons in a similar situation, the Court considers that the Polish State has failed to strike the requisite fair balance between the general interests of the community and the protection of the right of property.

Individual measures: The applicant’s house was definitively made available to her in February 2006.

As regards the pecuniary damage sustained, the Court has reserved the application of Article 41. It awarded the applicant 30 000 euros in respect of non-pecuniary damage and 22 500euros for costs and expenses.

• No further individual measure seems to be required at this stage.

General measures: Applying the “pilot-judgment” procedure, in line with the case of Broniowski against Poland (judgment of 22/06/2004, Grand Chamber; Section 4.2, Volume I), the European Court concluded in the operative part of the judgment that:

1) the violation found was the result of a structural problem linked to a malfunctioning of national legislation which:

-      despite the amendments introduced in 2004, had imposed and continued to impose restrictions on landlords’ rights, particularly as the legislation contains defective provisions on the determination of rent;

-      had had lacked and continued to lack any legal ways and means enabling them to at least to recover losses incurred in connection with property maintenance;

2) the respondent state must secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interest of the community in accordance with the principles of the protection of property rights under the Convention.

In this respect the European Court took due note of the Polish Constitutional Court’s judgment of 19/04/2005 (i.e. rendered after the Chamber judgment of 22/02/2005) abrogating the provisions introduced by the 2004 law setting an annual 10% ceiling for in creases in rents greater than 3% of the reconstruction value of the dwelling.

Nonetheless, and notwithstanding this judgment of the Constitutional Court, the Grand Chamber took the view that the general situation has not yet been brought into line with the standards of the Convention: the Polish authorities have not yet repealed the former restrictions with regard to the termination of leases nor put in place legal ways and means for landlords to mitigate or compensate losses incurred in connection with maintenance.

The European Court also observed that amongst the many possibilities at the disposal of the Polish state, there were those set out in the recommendations made to Parliament by the Constitutional Court on 29/06/2005 which among other things set out the features of a mechanism balancing the rights of landlords and tenants and criteria for what might be considered a “basic rent” , “economically justified rent” or “decent profit” (§§136-141 of the judgment).

Finally, the European Court noted that the rent control scheme might potentially affect some 100 000 landlords and from 600 000 to 900 000 tenants. It accordingly postponed the examination of similar pending applications (standing at 18, one of which had been lodged by an association of some 200 landlords).

The Secretariat will shortly be writing to the Polish authorities with a view to the presentation of an action plan for the execution of this judgment.

Decisions: The Deputies 1.             agreed to resume examination of this item at their 982nd meeting (5-6 December 2006) (DH) in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume examination of this item at the latest at their 2nd DH meeting in 2007 in the light of further information to be provided by the authorities of the respondent state concerning general measures to prevent new, similar violations.

*           *           *

*55339/00         Różański, judgment of 18/05/2006, final on 18/08/2006

The case concerns a violation of the applicant’s right to respect for his family life due to the obstacles placed in the way of his attempts to establish his paternity of a child (violation of Article 8).

From 1990 to 1994, the applicant lived with B.F., who gave birth to a boy, D. Following the break-up of their relationship, B.F. went into hiding with the child, with whom the applicant consequently lost contact. Having no locus standi under the applicable law, the applicant brought two suits, the first before the court of first instance requesting the designation of a legal guardian for the child who could bring an action on the chold’s behalf in the context of a paternity suit. He also applied to the pubic prosecutor to have such an action brought in his own behalf. The prosecutor dismissed his request in view of the risk of two parallel actions both aiming at the same result. In November 1995, the applicant abandoned his action before the court of first instance.

Then in July 1996 B.F.’s new companion, J.M., recognised the child as his own by a simple declaration which was validated by the court of first instance in proceedings to establish parental authority.

The applicant lodged several requests before the courts and the prosecutor with a view to contesting this recognition but these were rejected, from August 1996 to November 1998 on the ground that D.’s affiliation had already been established.

The European Court found that the violation found was due in general terms to the fact that there was no procedure directly accessible to the applicant by which he might claim the establishment of his paternity, the introduction of such a procedure being within the discretion of the authorities (§§73, 76). It also noted the absence in domestic law of any guidelines concerning how the relevant authorities should exercise such discretion, in the light of whether or not it is advisable to review a paternal relationship already established in law. In this respect the European Court considered that the authorities had exercised this power superficially in dealing with the applicant’s requests to contest J.M.’s paternity.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The applicant has no access to his supposed son (§35).

• Information is awaited on the applicant’s present situation so as to determine whether individual measures are warranted.

General measures:

• Measures already taken: In a judgment of 28/04/2003, the Polish Constitutional Court declared unconstitutional Article 84 of the Family and Guardianship Code which limits access to paternity proceedings solely to the child or the mother (§§ 47-52 of the European Court’s judgment).

The secretariat will shortly write to the Polish authorities inviting them to present a plan of action for the execution of this judgment.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case, if necessary, as well as individual measures to put an end to the violation and to the extent possible erase its consequences for the applicant; 2.             agreed to resume consideration of this item at the latest at their 2nd DH meeting in 2007 on the basis of further information to be provided by the authorities of the respondent state concerning the  general measures proposed to prevent new, similar violations.

*           *           *

*43797/98         Malisiewicz-Gąsior, judgment of 06/04/2006, final on 06/07/2006

The case concerns a violation of the applicant’s freedom of expression (violation of Article 10). In June 1992, Andrzej Kern, at the time Deputy Speaker of the Diet, laid a complaint before the public prosecutor against the applicant, whom he suspected of having kidnapped his daughter. The applicant was placed in custody – for some days in a “psychiatric” cell – and her apartment was searched by the police. In September 1992 the prosecutor abandoned the prosecution, realising that the kidnapping accusation was unfounded.

In 1993, the applicant presented herself as an independent candidate in the general election. During the election campaign, in two press articles, she accused Mr Kern of having abused his powers. These accusations were also broadcast on local television and radio. The applicant was prosecuted for defamation. At appeal she was sentenced on 18/11/97 to a year’s suspended prison term, to pay for the publication of the judgment against her in a national daily newspaper, to issue a pubic apology to Mr Kern in a weekly journal and to pay 480 PLN (about 100 euros) in court costs and 90 PLN (about 20 euros) to the Treasury.

On 01/12/2000, the Supreme Court dismissed the appeal on points of law introduced by the Ombudsman on the applicant’s behalf.

The European Court considered that the allegations of abuse of power uttered by the applicant did not constitute a gratuitous personal attack but were rather part of the pubic debate, and that criticism of of a politician in a lively political debate could not justify a custodial sentence. Thus the breach of the applicant’s freedom of expression was not “necessary in a democratic society”.

Individual measures: Although the applicant did not present her apologies to Mr Kern, the Skierniewice District Court decided on 23/10/2000 not to enforce the custodial sentence (§§ 42-43 of the judgment of the European Court).

The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. The applicant made no request in respect of pecuniary damage.

Under Article 540§3 of the Code of Criminal Procedure, the applicant may apply to gave the criminal proceedings reopened invoking the finding of a violation by the European Court (see the Skałka cse, judgment of 27/05/03, final on 27/08/03, 966th meeting (June 2006) Section 5.3).

• Information is awaited regarding how the applicant’s conviction can be struck out of her criminal record.

General measures: Given the direct effect of the Convention in Poland, it would seem sufficient to prevent new, similar violations to publish the European Court’s judgment on the internet site of the Ministry of Justice and to send it out under cover of a circular to criminal courts and to the Justices of the Supreme Court.

• Information is awaited on these matters.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this item at their 987th meeting (13-14 February 2007) (DH),  at the latest, in the light of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations – in particular the publication and dissemination of the European Court’s judgment – as  well as individual measures to put an end to the violation and, to the extent possible, erase its consequences for the applicant.

*           *           *

                       - Cases concerning the monitoring of correspondence

*51895/99         Kwiek, judgment of 30/05/2006, final on 30/08/2006

64283/01          Tomczyk Prokopyszyn, judgment of 28/03/2006, final on 28/06/2006

These cases concern violations of the applicants’ right to respect for their correspondence while they were detained (violation of Article 8).

In the first case, the surveillance of the applicant’s correspondence with his lawyer, prior to the entry into force of the new Code on the Enforcement of Sentences on 01/09/1998, was not “provided by law” in that the Polish law applicable at the time did not lay down with any precision the scope or modalities of exercise of the margin of appreciation then given to the authorities in this respect. The surveillance of his correspondence with the Constitutional Court and the European Court was equally not “provided by law” as it was in breach of the legislation then in force.

In the second case, a letter sent by the applicant to the European Court in November 2002 was received marked “Censored”. The European Court concluded that this mark showed that in all probability the letter had been opened by the national authorities in breach of the 1998 Rules on Detention on Remand which were applicable at the material time, and which provided that such opening could only take place in the detainee’s presence.

Individual measures: None: the European Court granted both applicants just satisfaction in respect of the non-pecuniary damage sustained.

General measures: These cases present similarities to that of Klamecki No. 2, judgment of 03/04/03, which will be examined at the 982nd meeting (December 2006).

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in theses cases if necessary and to join them, at the same meeting, with the Klamecki No. 2 case in order to examine the general measures proposed to prevent new, similar violations.

*           *           *

39598/98          Hulewicz, judgment of 23/02/2006, final on 23/05/2006

The case concerns the fact that in two sets of criminal proceedings between February and November 1997, the applicant was unlawfully kept in detention on remand beyond the expiry of the period fixed in the detention order, on the sole basis of the charges against him (violations of Article 5§1).

Individual measures: The unlawful detention came to an end with regard to both sets of criminal proceedings. The European Court granted the applicant just satisfaction in respect of non-pecuniary damage.

• Assessment: this being the case, no further individual measure seems necessary.

General measures: This case presents similarities to that of Baranowski (judgment of 28/03/00, which is being examined as part of the Trzaska group, Section 4.2, Volume I) in which the European Court concluded that the domestic practice keeping someone in detention on the basis of criminal charges had its origin in the fact that at the material time Polish law provided no precise rules governing the treatment of detainees during criminal proceedings after expiry of the period set out in the detention order issued during the investigatory phase. This kind of practice is no longer possible given the provisions of the Code of Criminal Procedure requiring that any extension of remand must be based on a court decision.

Decisions: The Deputies 1.             agreed to resume examination of this item at their 982nd meeting (5-6 December 2006) (DH) on the basis of further information to be provided concerning the payment of the just satisfaction awarded in this case if necessary; 2.             recalled that the other measures required for execution had already been taken.

*           *           *

*46917/99         Stankiewicz, judgment of 06/04/2006, final on 06/07/2006

The case concerns a violation of the applicants’ right to a fair trial in that the courts refused to pay the court costs they incurred in a civil suit brought against them unsuccessfully by the public prosecutor on behalf of the treasury (violation of Article 6§1). In a judgment dated April 1998, the Krakow Appeal Court ordered them to pay the costs, including in particular the fees of their counsel, amounting to 23 987, 26 PLN (6 665 euros).

The European Court observed that in civil proceedings, costs should be borne by the losing party but that this rule did not apply in principle to the public prosecutor. However, given the existing exceptions and relevant case-law, the European Court nonetheless considered that the judicial authorities have had insufficient regard to the particular circumstances of the case. In this context it concluded that the complexity of the case had obliged the applicants to be represented by counsel and that accordingly the costs had not been incurred recklessly or without good reason.

Individual measures: The European Court awarded the applicants just satisfaction in respect of pecuniary damage sustained, to an amount covering the costs they had been ordered to pay (50 000 PLN, or 12 828 euros) and in respect of non-pecuniary damage.

• Assessment: This being the case, no further individual measure seems necessary.

General measures: Article 98 of the Polish Code of Civil Procedure obliges the losing party to civil proceedings to pay the wining side the costs which it has incurred. However, under Article 106 of the Code, this rule is not applicable when the public prosecutor intervenes in civil proceedings as defender of the ublic order.

In its case-law, the Polish Supreme Court has mitigated the scope of this latter rule, by declaring that it did not apply to proceedings initiated by the prosecutor himself but only to those which were already pending when he declared himself party. It has also emphasised that the rule does not apply in cases where the prosecutor intervenes to defend the financial interests of the public treasury (§34 of the European Court’s judgment). However, this case-law was not applied in the present case.

Moreover the case-law of the Polish Constitutional Court has also tended in the same way, to ensure an equitable treatment of both parties with regard to the reimbursement of court costs (§§36-37 of the European Court’s judgment).

• Information is awaited concerning the publication and dissemination of the European Court’s judgment to civil courts and any other measures to prevent new, similar violations.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this item at the latest at their 2nd DH meeting in 2007 on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations, in particular the publication and dissemination of the European court’s judgment.

*           *           *

                       - Cases of length of detention on remand

Application	Case	Length of detention on remand	Applicant still on remand when the Court gave judgment
*17584/04	Celejewski, judgment of 04/05/2006, final on 04/08/2006	3 years, 9 months and 15 days	No
*31330/02	Gołek, judgment of 25/04/2006, final on 25/07/2006	3 years, 2 months and 5 days	No
25715/02	Jaworski, judgment of 28/03/2006, final on 28/06/2006	More than 6 years and 2 months	Yes
16535/02	Kubicz, judgment of 28/03/2006, final on 28/06/2006	About 2 years	No
36576/03	Leszczak, judgment of 07/03/2006, final on 07/06/2006	Ore than 2 years and 10 months	No
57477/00	Malik, judgment of 04/04/2006, final on 04/07/2006	1 year, 5 months	No
*13425/02	Michta, judgment of 04/05/2006, final on 04/08/2006	2 years and 11 months	No
*39437/03	Miszhurka, judgment of 04/05/2006, final on 04/08/2006	3 years and 7 months	No

These cases concern the excessive duration of the applicants’ detention on remand between December 1998 and March 2006, given that the domestic courts grounded their decisions to keep them in detention on considerations that were neither relevant nor adequate in the light of the case-law of the European Court (violations of Article 5§3). The European Court also noted that, whether or not there was good enough reason for suspecting the applicants of having committed the offences at issue to justify their detention, the relevance of these reasons inevitably diminished with the passage of time. What it more, the authorities never considered imposing on the applicants other measures provided by Polish law to ensure due process in the criminal proceedings, such as granting them bail or freeing them under the supervision of the court.

The Michta case also concerns a violation of the applicant’s right to respect for his correspondence during detention on remand in that a letter he sent to the European Court in February 2002 bore the mark “Censored”. The Court concluded that this interference was not provided by law, as it was in breach of the Code on the Enforcement of Sentences (violation of Article 8).

Individual measures: When the European Court pronounced judgment in theses cases none of the applicants except the applicant Jaworski was still detained on remand. The European Court awarded just satisfaction on respect of the non-pecuniary damage sustained.

Information is awaited concerning the situation of the applicant Jaworski and, as the case may be, his liberation.

General measures:

            1) Violations of Article 5§3: These cases present similarities to those in the Trzaska group (Trzaska against Poland, judgment of 11/07/2000, final on 11/10/2000, Section 4.2, Volume I).

            2) Violation of Article 8 in the Michta case: This case presents similarities to that of Klamecki (No. 2), judgment of 03/04/03 which will be examined at the 982nd meeting (December 2006).

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases if necessary and to join them, at the same meeting, with the Trzaska group of cases to examine the general measures proposed to prevent new, similar violations as well as individual measures to put an end to the violation and, to the extent possible, erase its consequences for the applicant in the Jaworski case.

*           *           *

52495/99          Koss, judgment of 28/03/2006, final on 28/06/2006

This case concerns the excessive length of certain proceedings concerning civil rights and obligations before administrative bodies and the Supreme Administrative Court (violation of Article 6§1). The proceedings, which concerned the grant of a right of usufruct on a plot of land nationalised in 1945, began in August 1993 and were still pending when the European Court gave judgment (12 years, 7 months). The European Court noted that the length of proceedings had to do with the inactivity of certain administrative authorities, not least the Mayor of Warsaw.

Individual measures:

• Information is awaited concerning the state of the proceedings and if appropriate their acceleration.

General measures: his case presents similarities to that of Fuchs (judgment of 11/02/03, Section 4.2, Volume I).

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary and to join it, subsequently, with the Fuchs case to examine the general measures proposed to prevent new, similar violations and the individual measures to put an end to the violation and to the extent possible erase its consequences for the applicant.

*           *           *

*60299/00         Bogacz, judgment of 09/05/2006, final on 09/08/2006

This case concerns the excessive length of criminal proceedings brought against the applicant in 1994 and which ended in 2002 following the applicant’s death in 2000 (violation of Article 6§1).

Individual measures: None: proceedings are closed and the Euopean Court awarded just satisfaction to the applicnt’s widow for non-pecuniary damage.

General measures: This cse presents similarities to that of Kudła (judgment of 26/10/00 – Grand Chamber, Section 4.2, Volume I).

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary and to join it, at the same meeting, with the Kudła case to examine the general measures proposed to prevent new, similar violations.

- 1 case against Portugal

*29288/02         Roseiro Bento, judgment of 18/04/2006, final on 18/07/2006

The case concerns a breach of the freedom of expression of the applicant, who was at that time mayor of the town of Vagos, on account of a civil judgment of 2001 condemning him to pay damages claimed by a political opponent for insulting behaviour in the course of a debate in the municipal council (violation of Article 10).

The European Court took the view that the applicant’s provocative language was not excessive in the context of a politically charged, live debate, particularly taking account of the plaintiff’s virulent statements. It therefore found that a just balance had not been struck between the need to ensure the freedom of political debate and the obligation to protect the plaintiff’s rights and reputation.

Individual measures: the fine paid by the applicant as a result of his conviction has been reimbursed in the framework of the just satisfaction awarded by the European Court. No further consequences of the violation remain to be erased, the criminal proceedings against the applicant having already been discontinued in 1999, following an amnesty.

General measures: the case presents some similarities with that of Lopes Gomes da Silva (judgment of 28/09/2000, final on 28/12/2000) (Section 6.2).

- 3 cases against Romania

25632/02          Stere and others, judgment of 23/02/2006, final on 23/05/2006

The case concerns the Supreme Court's annulment of final court decision following the application for nullity lodged by the Prosecutor General on the ground of Article 330 of the Code of Civil Procedure which allowed him at any moment to challenge final court decisions (violation of Article 1 of Protocol No. 1).

Following the applicants’ action against the Ministry of Defence, the Alba Iulia Court of First Instance ordered, on 11/01/2001, the Ministry to pay the sums withheld previously in tax. However, the Supreme Court, following the application lodged by the Procurator-General, decided on 30/01/2002 to set aside the final judgement and ordered the reimbursement of the sums lawfully obtained by the applicants to the Ministry of Defence. The Court concluded that the exercise of the State’s powers, in the circumstances of the case, infringed the principles of legal certainty and the rule of law.

Individual measures:

• Information is awaited: on the current situation of the applicants and on the measures taken or envisaged to eliminate the consequences of the violation suffered.

General measures: this case is similar to the Brumărescu case, in the framework of which the Romanian authorities indicated that Article 330 of the Romanian Code of Civil Procedure had been repealed by an emergency ordinance adopted by the government and published in the Official Gazette on 28/06/2003. This reform was approved by Parliament on 25/05/2004.

*           *           *

*1295/02           Nicolau, judgment of 12/01/2006, final on 03/07/2006

The case concerns the excessive length of civil proceedings concerning a patent (violation of Article 6§1).

Proceedings began in January 1995 and were still pending when the European Court delivered its judgment (already 10 years, 11 months for three degrees of jurisdiction).

Individual measures:

• Information is expected on the state of proceedings and, if appropriate, on measures taken to accelerate them.

General measures:

• Measures expected: the publication and dissemination of the European Court's judgment among the relevant authorities and domestic courts.

• Other information expected: The authorities are invited to provide information on the domestic situation concerning the length of civil proceedings and on measures taken or envisaged to prevent new, similar violations. It is also recalled that in the context of several criminal cases (e.g., Pantea case, judgment of 03/06/03, Section 4.2, Volume I) the Secretariat has asked the Romanian authorities whether they were envisaging measures to provide national means of redress for excessively long judicial proceedings.

Decisions: The Deputies 1.             agreed to resume consideration of this item, if necessary, at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case; 2.             agreed to resume consideration of this item at their 992nd meeting (3‑4 April 2007) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations as well as the state of the domestic proceedings and, if appropriate, concerning measures taken to accelerate them.

*           *           *

*75129/01         Rosca, judgment of 06/07/2005 - Friendly settlement

The case concerns the applicant's complaints concerning unfairness of the criminal proceedings before military courts (complaints under Article 6§1) and the unlawfulness of the tapping of his telephone (complaints under Article 8). The applicant was sentenced on 26 February 2001 by a final Supreme Court of Justice's decision to eight years' imprisonment. In July 2003, he received a presidential pardon.

- 8 cases against the Russian Federation

59261/00          Menesheva, judgment of 09/03/2006; final on 09/06/2006

The case concerns the ill-treatment (found by the European Court to amount to torture) inflicted on the applicant following her apprehension in February 1999 while she was kept for 20 hours at the Zheleznodorozhnyy District police station (violation of Article 3).

The applicant was regarded as a witness in the criminal proceedings initiated against her companion, but refused to let the police search her apartment without a warrant. She was accordingly arrested and taken to the police station for the administrative offence of violent resistance against the police.

The case also concerns the absence of any effective investigation into the applicant's allegations of torture. In this respect the European Court noted that the internal investigation was only opened nearly four years after the events and after the applicant had seised the European Court. After three years, the investigation had still failed to establish the material circumstances of the applicant's injuries (procedural violation of Article 3), depriving her of an effective remedy, including any claim for compensation (violation of Article 13).

The case furthermore concerns the unlawfulness of the applicant's apprehension for having allegedly resisted the police. The European Court noted in this respect that the true reason for her arrest and overnight detention was to force her to give information about her companion and surrender the keys to her flat (§ 82 of the judgment). The Court further found that there had been no record of information about the apprehension, such as the date, time and location of detention, her name, the reasons for her arrest and the name of the arresting officer (violation of Article 5§1).

Finally, the European Court found that the five days' administrative detention imposed on the applicant to be unlawful as the judge at exercised his authority in manifest disregard of the procedural guarantees provided by the Convention (violation of Article 5§1), that there had been no adversarial proceedings as such and that even the appearances of a trial had been neglected (violation of Article 6§1).

Individual measures:

• Information is awaited on the outcome of the investigation into the events at issue. According to the order of the Prosecutor General of 3/03/2004, the Prosecutor's office of the Zheleznodorozhnyy District was given 30 days to complete the investigation under the supervision of the Prosecutor General (§ 42 of the judgment). However no information in this respect was available when the European Court delivered its judgment.

General measures: Certain issues have already been raised under other similar cases in which the Russian authorities were invited to present an action plan addressing:

-     that of ineffective investigations into allegations of torture against police officers and lack of an effective remedy in this respect (letter of 6/07/06 sent in the Mikheyev case),

-     that of absence of arrest records (letter of 12/06/06 sent in the Fedotov case).

The case also raises a number of new issues since the applicant's apprehension and detention were subject to the Code on Administrative Offences replaced by the new Code on 01/07/2002.

1) Violations of Articles 3 (substantial) and 5§1 in relation with the administrative apprehension (zaderganie)

The new Code provides that the maximum period of administrative arrest is 3 hours, which may be extended to 48 hours (after expiry of which the arrested person shall be brought before a judge) and a possibility of being assisted by a lawyer upon apprehension.

• Clarifications awaited: the following clarifications are requested:

- whether an apprehended person is subject to a compulsory medical examination at the time of his apprehension;

- whether and, if so, at what stage the prosecutor is notified of the apprehension so as to allow him to exercise his powers under Article 22§3 of the Law “On Prokuratura” (to release an unlawfully arrested person);

- whether the decision taken by the state officials designated in Article 27.5 to prolong the period of apprehension above 3 hours is subject to immediate review by any other authority, for example, a prosecutor;

- what are the additional safeguards in case of extension of apprehension over 3 hours, e.g. compulsory medical examination, meeting with a lawyer, etc.

2) Violations of Articles 5§1 and 6§1 in relation with the applicant's administrative detention (arrest)

The new Code on Administrative Offences seems to be in line with the Convention's requirements since it provides a number of procedural guarantees for those facing administrative detention, e.g. clear time-limits for bringing the case to court, defendants' procedural rights and possibility of appealing decisions ordering such measure. It would however be useful to know whether any disciplinary or other proceedings may be brought against a judge who disregarded these procedural requirements, for instance the judge who ordered the applicant's administrative detention.

3) Dissemination and publication of the judgment: Publication and wide dissemination of the judgment to all competent authorities are required together with circular letters and detailed instructions to be issued by higher hierarchical authorities, in particular by the Ministry of Interior and by the Prosecutor General, to explain to all subordinates the obligations flowing from the judgment and their effects on the day-to-day practice. An explanatory note from the Supreme Court to all lower courts would also be useful.

*           *           *

55669/00          Nakhmanovitch, judgment of 02/03/2006, final on 02/06/2006

The case concerns the unlawful character of the applicant’s detention on remand from 04/03/1999 to 04/02/2000 due to:

-               the practice of keeping accused persons on remand after expiry of the detention period authorised by the prosecutor on the sole ground that a bill of indictment has been lodged with the trial court;

-               a failure to indicate any legal ground and any time-limit in the subsequent court decision extending the remand (violations of Article 5§1).

The case also concerns the excessive length of the applicant’s detention on remand. The European Court found that, in failing to address concrete facts and by relying solely on the gravity of charges, the authorities extended the applicant’s detention (2 years, 4 months and 24 days) on grounds which cannot be regarded as “sufficient” (violation of Article 5§3).

The case also concerns the denial by the court of the applicant’s right to a judicial decision concerning the lawfulness of his detention pending trial (violation of Article 5§4).

Finally, the case concerns the excessive length of the criminal proceedings, which lasted 5 years and 11 months, which did not satisfy the “reasonable time” requirement (violation of Article 6§1).

Individual measures: The applicant was released on 04/02/2000. All charges against him have been dismissed and the criminal proceedings discontinued.

General measures:

1) Violation of Article 5§1: the case presents similarities to that of Khudoyorov in which the Russian authorities were invited to present an action plan to comply with the judgment by letter of 06/07/2006.

2) Violations of Articles 5§3, 5§4 and 6§1: the case presents similarities to those in the Klyakhin group for which an action plan has been expected from the Russian authorities since November 2005.

3) Dissemination and publication of the judgment: given the gravity and the repetitive character of the violations found, publication and wide dissemination of the judgment to all competent authorities are required, in particular to:

- all prosecutors, with detailed instructions to be issued by the General Prosecutor’s Office,

- all directors of remand centres, with a circular letter from the Federal Service of Execution of Sentences stressing their obligation to release anyone in custody after expiry of the authorised detention period and/or without a judicial order,

- all courts, with an explanatory note from the Supreme Court. A Ruling from the Supreme Court specifically dedicated to the application of Article 5 of the Convention would be particularly useful.

*           *           *

*11886/05         Dolgova, judgment of 02/03/2006, final on 03/07/2006

The case concerns the excessive length of the applicant’s detention from 14/12/2004 to 08/12/2005 in Moscow, i.e. for almost 12 months. The Court found that, by failing to address concrete facts or consider alternative “preventive measures” and by relying solely on the gravity of charges, the authorities prolonged the applicant’s detention on grounds which cannot be regarded as “relevant and sufficient” (violation of Article 5§3).

Individual measures: On 8/12/2005 the Tverskoy District Court found the applicant guilty and gave her a suspended sentence of three years’ imprisonment.

General measures: The case presents similarities to those in the Klyakhin group in which the Committee will resume its examination of the general measures to prevent new, similar violations on the basis of an action plan to be presented by the authorities at its 976th meeting (October 2006).

In the context of the preparation of this action plan, the authorities’ particular attention should be drawn to the fact that the events at issue occurred after the entry into force of the new Code of Criminal Procedure which lays down the specific grounds for ordering or extending detention on remand, in line with the Convention’s requirements. It transpires from the Court’s judgment that these provisions were disregarded by Moscow courts. The Russian authorities are therefore invited to consider, within the scope of the expected action plan, the measures necessary to ensure proper application of the domestic provisions and of the Convention's detailed requirements, possibly by issuing new guidelines by the Plenum of the Supreme Court and by improving in-service training of judges, prosecutors and heads of detention centres. In this context, the strengthening of their disciplinary and professional responsibility might also be considered. Publication and wide dissemination of the judgment are also required.

*           *           *

*67051/01         Zasurtsev, judgment of 27/04/2006, final on 27/07/2006

The case concerns a violation of the applicant’s right to a court in that, in 2000, the Presidium of the Supreme Court of the Republic of Mordovia quashed a final judgment in the applicant’s favour concerning the amount of his monthly benefits, following an application for supervisory review (nadzor) lodged by the Prosecutor of the Republic of Mordovia under Articles 319 and 320 of the Code of Civil Procedure then in force. These provisions gave state officials discretionary powers to challenge final court decisions at any moment. The European Court found that the use of supervisory review infringed the principle of legal certainty and thus the applicants' right to a court (violation of Article 6§1).

General measures: This case presents similarities with the Ryabykh case in which the Committee will in due course resume its supervision of the adoption of the necessary general measures (the progress achieved so far and outstanding issues are summarised in the Interim Resolution ResDH(2006)1, see also CM/Inf/DH(2005)20).

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case if necessary, and to join it subsequently to the group of cases Ryabykh to supervise the general measures proposed to prevent new, similar violations.

*           *           *

- Cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Applications	Cases	Dates of domestic judgments	Outcome of the enforcement of domestic judgments
*26724/03	Agibalova and others, judgment of 13/04/2006, final on 13/07/2006	Numerous judgments delivered in 2000-2001	Enforced in January and February 2004
*22519/02	Alekhina and others, judgment of 13/04/2006, final on 13/07/2006	Numerous judgments delivered in 2000-2001	Enforced in January and February 2004
*75470/01	Sukhobokov, judgment of 13/04/2006, final on 13/07/2006	25/10/1999	quashed

These cases concern violations of the applicants' right to a court due to the administration's failure to enforce final judicial decisions granting the applicants' claims for (a) welfare payments for children and (b) payment of a retirement pension (violations of Article 6§1 and of Article 1 of Protocol No. 1).

Individual measures: None: all the domestic judgments have been enforced.

General measures: The cases present similarities to those of the Timofeyev group, in which the Committee is examining the general measures envisaged by the Russian authorities to execute the European Court's judgments relating to the non-enforcement of domestic judicial decisions on the basis of the Memorandum prepared by the Secretariat, CM/Inf/H(2006)19 revised (Section 4.2, Volume I).

Decision: The Deputies agreed to resume consideration of these items at their 982 meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in these cases, if need be, and to join them, at the same meeting, with the Timofeyev group, to supervise the general measures proposed to prevent new, similar violations.

*           *           *

Application	Case	Dates of domestic judgments	Outcome of the enforcement of domestic judgments
37927/02	Nikolayev, judgment of 02/03/06, final on 02/06/06	19/03/2001 28/05/2002	Enforced in March 2003 quashed

The case concerns violations of the applicant’s right to a court due to the Russian social authorities’ failure over several years to enforce final judicial decisions ordering them to pay certain sums in compensation and allowances (with subsequent indexation) for health damage sustained by the applicant during emergency and rescue operations in Chernobyl.

Notwithstanding the measures adopted by the Russian authorities to solve this structural problem (for more details see Resolution ResDH(2004)85 adopted by the Committee of Ministers to close the Burdov case), the European Court found that the applicant had not been provided at the domestic level with adequate redress for the delays in the enforcement of the court decisions in their favor (violations of Article 6§1 and of Article 1 of Protocol No. 1).

General measures: The case presents similarities to those of the Levin group examined in Section 4.2, Volume I.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case, and to join it, at the same meeting, with the Levin group of cases, to supervise the general measures which may be necessary to prevent new, similar violations.

- 3 cases against the Slovak Republic

                       - Cases of length of civil proceedings

2015/02            Jakub, judgment of 28/02/2006, final on 28/05/2006

*70798/01         Jenčová, judgment of 04/05/2006, final on 04/08/2006

*62187/00         Malejčík, judgment of 31/01/2006, final on 03/07/2006

These cases concern the excessive length of civil proceedings initiated between 1995 and 1998 and closed between 2001 and 2002 (violations of Article 6§1).

In addition the European Court, when examining the admissibility of the application in the Jakub case, found that the practice followed by the Constitutional Court in the circumstances of that case had rendered ineffective the constitutional complaint, introduced in Slovakia in 2002, against the excessive length of judicial proceedings. In 2003 the Constitutional Court rejected the applicant’s request concerning the excessive length of the proceedings he had instituted on the ground that the proceedings were no longer pending before the court responsible for the alleged delays (see also §§45 and 48 of the judgment of the European Court in the Malejčík case).

Individual measures: None: proceedings closed.

General measures:

            1) Excessive length of civil proceedings:

• Measures adopted: General measures have already been adopted to improve the efficiency of the judicial system and avoid new violations, particularly in the context of the examination of the Jóri case (judgment of 09/11/2000) closed by Resolution ResDH(2005)67 (Act No. 501/2001 which reduces the number of cases in which second-instance courts are competent at first instance and aims to accelerate the gathering of evidence; Act No. 385/2000 which regulates the civil and disciplinary liability of judges for unjustified delays in their cases).

• Additional measures required: the Slovak authorities are invited to provide statistics on the length of civil proceedings for the period 2002-2005, as well as an evaluation of the present situation at national level and, if appropriate, of the necessity for additional measures to those already adopted in 2000-2002.  

            2) Remedies against the excessive length of civil proceedings:

• Measures adopted: A reform of the Constitution adopted in 2002 introduced the possibility of a constitutional petition for complaints of violations of human rights protected by international treaties. The European Court has already found on several occasions that this new constitutional complaint represents an effective remedy in the sense of Article 13 of the Convention (see among others the admissibility decision in the case of Andrášik and others, of 22/10/2002).

• Additional measures required: taking into account the European Court’s findings in the cases of Jakub and Malejčík concerning the ineffectiveness of this remedy in these cases, due to the practice of the Constitutional Court followed in similar kind of cases, information is awaited on measures to guarantee the full effectiveness of that remedy in the future. In any event, it seems necessary to send the judgment of the European Court to the Constitutional Court to enable it take into account the requirements of the Convention concerning this issue.

- 111 cases against Slovenia

47825/99          Krisper, judgment of 23/03/2006, final on 23/06/2006

The case concerns the excessive length of certain proceedings concerning civil rights and obligations before administrative bodies to obtain restitution of real property belonging to the applicant’s parents, whose nationality required clarification (violation of Article 6§1). Proceedings to establish the parents’ nationality lasted 11 years, 7 months for 6 and 7 degrees of jurisdiction and have still not been completed.

Individual measures:

• Information is awaited on the state of the various proceedings and on measures taken or envisaged to accelerate them if they are still pending.

General measures: As this is the first case of this type against Slovenia, information is awaited as to whether there is a systemic problem concerning the length of proceedings before administrative courts. In any event, publication and dissemination of the European Court’s judgment to the appropriate authorities seem necessary.

It would also be useful to be informed whether there is a national remedy to obtain acceleration of proceedings or compensation in case of excessive duration.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this item at their 992nd meeting (3-4 April 2007) (DH),  in the light of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations as well as individual measures to put an end to the violation and, to the extent possible, erase its consequences for the applicant.

*           *           *

                       - Cases of length of judicial proceedings and of lack of an effective remedy

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
*27946/02	Antolič, judgment of 27/04/2006, final on 27/07/2006	9 years (3 degrees of jurisdiction)	Yes.	1997
*26881/02	Avdič, judgment of 13/04/2006, final on 13/07/2006	Over 8 years and 8 months (5 degrees of jurisdiction)	No.	1997
*75809/01	Bastič, judgment of 06/04/2006, final on 06/07/2006	More than 5 years and 7 months (2 degrees of jurisdiction)	No.	1997
75402/01	Bauer, judgment of 09/03/2006, final on 09/06/2006	About 5 years and 11 months (4 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
*24901/02	Bedi, judgment of 13/04/2006, final on 13/07/2006	Over 10 years and 1 month (4 degrees of jurisdiction)	Yes.	1996
*7877/02	Belošević, judgment of 06/04/2006, final on 06/07/2006	About 10 years and 2 months (5 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
*39178/02	Benedejčič and Tratnik, judgment of 27/04/2006, final on 27/07/2006	About 10 years (3 degrees of jurisdiction)	No.	1996
*42274/02	Bizjak Jagodič, judgment of 06/04/2006, final on 06/07/2006	More than 5 years and 6 months (2 degrees of jurisdiction)	No.	1999
*23571/02	Blatešič, judgment of 13/04/2006, final on 13/07/2006	Over 8 years and 2 months (2 degrees of jurisdiction)	Yes.	1997
*77796/01	Cekuta, judgment of 06/04/2006, final on 06/07/2006	About 11 years and 2 months (3 degrees of jurisdiction)	Yes.	1995
76430/01	Cmok, judgment of 09/03/2006, final on 09/06/2006	About 6 years and 11 months (3 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
57566/00	Cundrič, judgment of 30/03/2006, final on 30/06/2006	1) Over 11 years and 8 months (4 degrees of jurisdiction) 2) About 6 years and 2 months (3 degrees of jurisdiction) 3) About 5 years and 11 months (3 degrees of jurisdiction)	1) Yes. 2) No. 3) No.	1) 1994 (when the Convention entered into force) 2) 1998 3) 1999
75653/01	Cvetrežnik, judgment of 30/03/2006, final on 30/06/2006	Over 4 years and 4 months (2 degrees of jurisdiction)	No.	1997
*32964/02	Daković, judgment of 27/04/2006, final on 27/07/2006	8 years and 2 months (7 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
*1438/02	Deželak, judgment of 06/04/2006, final on 06/07/2006	More than 11 years and 8 months (3 degrees of jurisdiction)	Yes.	1994 (when the Convention entered into force)
*38523/02	Divkovič, judgment of 06/04/2006, final on 06/07/2006	Over 7 years and 2 months (2 degrees of jurisdiction)	Yes.	1999
*38310/02	Draganovič, judgment of 27/04/2006, final on 27/07/2006	Over 6 years and 4 months (3 degrees of jurisdiction)	No.	1997
*37289/02	Dragovan, judgment of 27/04/2006, final on 27/07/2006	Over 7 years and 3 months (3 degrees of jurisdiction)	Yes.	1998
76212/01	Dreu, judgment of 09/03/2006, final on 09/06/2006	Nearly 5 years and 11 months (4 degrees of jurisdiction)	No.	1996
*5162/02	Drozg, judgment of 06/04/2006, final on 06/07/2006	About 7 years (3 degrees of jurisdiction)	No.	1998
49019/99	Eucone D.O.O., judgment of 09/03/2006, final on 09/06/2006	1) about 6 years (2 degrees of jurisdiction) 2) about 8 years and 4 months (1 degree of jurisdiction)	No.	1) 1997 2) 1997
*77818/01	Ferlič, judgment of 06/04/2006, final on 06/07/2006	Nearly 7 years and 11 months (2 degrees of jurisdiction)	No.	1997
75366/01	Fetiš D.O.O., judgment of 30/03/2006, final on 30/06/2006	More than 11 years and 8 months (4 degrees of jurisdiction)	Yes.	1994 (when the Convention entered into force)

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
*39137/02	Fonda, judgment of 27/04/2006, final on 27/07/2006	Over 7 years (1 degree of jurisdiction)	Yes.	1999
*5059/02	Gaber, judgment of 06/04/2006, final on 06/07/2006	Almost 6 years and 3 months (3 degrees of jurisdiction)	No.	1998
*37057/02	Gashi, judgment of 27/04/2006, final on 27/07/2006	Over 8 years and 11 months (1 degree of jurisdiction)	Yes.	1997
76378/01	Golenja, judgment of 30/03/2006, final on 30/06/2006	Over 7 years and 7 months (7 degrees of jurisdiction)	No.	1994
77819/01	Gorenjak, judgment of 30/03/2006, final on 30/06/2006	About 6 years and 2 months (3 degrees of jurisdiction)	No.	1997
*4507/02	Goričan, judgment of 13/04/2006, final on 13/07/2006	About 7 years and 8 months (2 degrees of jurisdiction)	Yes.	1998
75813/01	Goršek, judgment of 30/03/2006, final on 30/06/2006	Over 8 years and 10 months (3 degrees of jurisdiction)	Yes.	1997
*9277/02	Gradič, judgment of 06/04/2006, final on 06/07/2006	About 5 years and 7 months (3 degrees of jurisdiction)	No.	1997
*38333/02	Grušovnik, judgment of 27/04/2006, final on 27/07/2006	Nearly 7 years (4 degrees of jurisdiction)	No.	1995
75695/01	Hafner, judgment of 30/03/2006, final on 30/06/2006	Over 8 years and 2 months (4 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
*33541/02	Hribar, judgment of 27/04/2006, final on 27/07/2006	Over 6 years and 9 months (3 degrees of jurisdiction)	No.	1997
*10296/02	Hriberšek, judgment of 13/04/2006, final on 13/07/2006	9 years and 2 months (5 degrees of jurisdiction)	Yes.	1996
*36054/02	Hriberšek Marjan, judgment of 27/04/2006, final on 27/07/2006	Over 9 years and 3 months (2 degrees of jurisdiction)	Yes.	1996
75628/01	Hrustelj, judgment of 30/03/2006, final on 30/06/2006	7 years (4 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
*75817/01	Huseinović, judgment of 06/04/2006, final on 06/07/2006	Over 9 years and 8 months (9 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
*75790/01	Ibrahimi, judgment of 06/04/2006, final on 06/07/2006	Over 6 years and 11 months (3 degrees of jurisdiction)	No.	1996
*4267/02	Jenko, judgment of 06/04/2006, final on 06/07/2006	Over 7 years and 7 months (3 degrees of jurisdiction)	Yes.	1998
*38341/02	Ješič, judgment of 27/04/2006, final on 27/07/2006	About 6 years and 2 months (2 degrees of jurisdiction)	No.	1999
*7883/02	Jurkošek, judgment of 06/04/2006, final on 06/07/2006	Over 7 years and 7 months (4 degrees of jurisdiction)	Yes.	1998
*20610/02	Jurkošek, judgment of 13/04/2006, final on 13/07/2006	Over 6 years and 4 months (3 degrees of jurisdiction)	No.	1995

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
*75798/01	Klaneček, judgment of 06/04/2006, final on 06/07/2006	Nearly 11 years and 9 months (2 degrees of jurisdiction)	Yes.	1994 (when the Convention entered into force)
66458/01	Klinar, judgment of 09/03/2006, final on 09/06/2006	About 9 years and 3 months (3 degrees of jurisdiction)	No.	1996
*40128/02	Kočevar, judgment of 27/04/2006, final on 27/07/2006	Nearly 8 years and 5 months (3 degrees of jurisdiction)	Yes.	1997
77769/01	Kos, judgment of 30/03/2006, final on 30/06/2006	About 5 years and 8 months (3 degrees of jurisdiction)	No.	1997
*17330/02	Kotnik, judgment of 13/04/2006, final on 13/07/2006	3 years and 1 months (1 degree of jurisdiction)	No.	1999
*19894/02	Kotnik, judgment of 06/04/2006, final on 06/07/2006	About 6 years and 10 months (3 degrees of jurisdiction)	Yes.	1999
75742/01	Kovačič, judgment of 03/2006, final on 30/06/2006	Over 10 years and 7 months (3 degrees of jurisdiction)	Yes.	1995
*27694/02	Krajnc, judgment of 27/04/2006, final on 27/07/2006	Nearly 6 years and 2 months (4 degrees of jurisdiction)	No.	1997
75705/01	Kramer, judgment of 09/03/2006, final on 09/06/2006	More than 9 years (2 degrees of jurisdiction)	Yes.	1997
77541/01	Krašovec, judgment of 09/03/2006, final on 09/06/2006	More than 8 years (3 degrees of jurisdiction)	Yes.	1998
*75787/01	Krznar, judgment of 06/04/2006, final on 06/07/2006	Nearly 8 years and 6 months (6 degrees of jurisdiction)	Yes.	1997
76524/01	Kukavica, judgment of 09/03/2006, final on 09/06/2006	Over 10 years and 1 month (3 degrees of jurisdiction)	Yes.	1995
*20300/02	Kukovič, judgment of 06/04/2006, final on 06/07/2006	Nearly 4 years and 5 months (2 degrees of jurisdiction)	No.	1998
77542/01	Kumer, judgment of 09/03/2006, final on 09/06/2006	Over 8 years and 5 months (3 degrees of jurisdiction)	No.	1995
*28922/02	Kunstič, judgment of 27/04/2006, final on 27/07/2006	Over 5 years and 6 months (2 degrees of jurisdiction)	No.	1998
55062/00	Kveder, judgment of 09/03/2006, final on 09/06/2006	About 7 years (3 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
*33553/02	Lesjak, judgment of 06/04/2006, final on 06/07/2006	Over 9 years and 6 months (9 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
*17321/02	Lorbek, judgment of 13/04/2006, final on 13/07/2006	Over 6 years and 11 months (3 degrees of jurisdiction)	Yes.	1999
75773/01	Majhen, judgment of 30/03/2006, final on 30/06/2006	Nearly 10 years and 3 months (5 degrees of jurisdiction)	No.	1994
75745/01	Mamič, judgment of 30/03/2006, final on 30/06/2006	Nearly 8 years and 10 months (2 degrees of jurisdiction)	Yes.	1997

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
*40125/02	Mandir, judgment of 27/04/2006, final on 27/07/2006	About 8 years (2 degrees of jurisdiction)	Yes.	1998
*1461/02	Marinović, judgment of 13/04/2006, final on 13/07/2006	Over 4 years and 8 months (2 degrees of jurisdiction)	No.	1997
75815/01	Meh, judgment of 09/03/2006, final on 09/06/2006	About 3 years and 8 months (1 degree of jurisdiction)	No.	1998
*17360/02	Mrkonjič, judgment of 06/04/2006, final on 06/07/2006	Nearly 10 years (5 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
77545/01	Mulej - Zupanec & Others, judgment of 09/03/2006, final on 09/06/2006	More than 7 years and 8 months (3 degrees of jurisdiction)	Yes.	1998
*6799/02	Muratovič, judgment of 13/04/2006, final on 13/07/2006	Over 7 years and 9 months (4 degrees of jurisdiction)	No.	1997
49016/99	Novak, judgment of 09/03/2006, final on 09/06/2006	5 years and 9 months (3 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
75618/01	Novak, judgment of 30/03/2006, final on 30/06/2006	Over 10 years and 7 months (7 degrees of jurisdiction)	Yes.	1995
*33561/02	Ovniček, judgment of 27/04/2006, final on 27/07/2006	Over 10 years and 7 months (3 degrees of jurisdiction)	Yes.	1995
*1423/02	Ožek, judgment of 13/04/2006, final on 13/07/2006	Nearly 6 years and 4 months (3 degrees of jurisdiction)	No.	1998
*20543/02	Pavlovič, judgment of 13/04/2006, final on 13/07/2006	Over 8 years and 2 months (5 degrees of jurisdiction)	No.	1996
*17337/02	Pažon, judgment of 06/04/2006, final on 06/07/2006	About 4 years and 11 months (2 degrees of jurisdiction)	No.	1999
76439/01	Pečnik, judgment of 30/03/2006, final on 30/06/2006	More than 9 years and 1 months (4 degrees of jurisdiction)	Yes.	1997
*25055/02	Pfeiffer, judgment of 13/04/2006, final on 13/07/2006	Over 5 years and 5 months (1 degree of jurisdiction)	No.	1997
77821/01	Planko, judgment of 30/03/2006, final on 30/06/2006	Over 7 years and 5 months (3 degrees of jurisdiction)	No.	1997
76515/01	Podkriznik, judgment of 09/03/2006, final on 09/06/2006	About 6 years and 2 months (3 degrees of jurisdiction)	No.	1996
*22266/02	Požin, judgment of 13/04/2006, final on 13/07/2006	Over 8 years (3 degrees of jurisdiction)	Yes.	1997
*75784/01	Prekoršek, judgment of 06/04/2006, final on 06/07/2006	Over 8 years and 2 months (3 degrees of jurisdiction)	Yes.	1998
76199/01	Puž, judgment of 30/03/2006, final on 30/06/2006	More than 11 years and 8 months (3 degrees of jurisdiction)	Yes.	1994 (when the Convention entered into force)
*37296/02	Radanović, judgment of 27/04/2006, final on 27/07/2006	Over 5 years and 4 months (2 degrees of jurisdiction)	No.	1998

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
*41511/02	Radivojević, judgment of 27/04/2006, final on 27/07/2006	Over 8 years and 5 months (3 degrees of jurisdiction)	Yes.	1997
*16263/02	Ramšak, judgment of 06/04/2006, final on 06/07/2006	About 3 years and 11 months (1 degree of jurisdiction)	No.	1998
*10288/02	Repas, judgment of 06/04/2006, final on 06/07/2006	More than 8 years and 6 months (7 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
*7210/02	Rober, judgment of 13/04/2006, final on 13/07/2006	Over 10 years and 2 months (5 degrees of jurisdiction)	Yes.	1995
*38528/02	Rodič, judgment of 27/04/2006, final on 27/07/2006	Over 5 years and 5 months (2 degrees of jurisdiction)	No.	1998
75687/01	Rojc, judgment of 30/03/2006, final on 30/06/2006	Nearly 6 years (1 degree of jurisdiction)	No.	1994 (when the Convention entered into force)
75697/01	Rojnik, judgment of 30/03/2006, final on 30/06/2006	Nearly 9 years and 7 months (3 degrees of jurisdiction)	Yes.	1996
*20254/02	Rozman, judgment of 13/04/2006, final on 13/07/2006	Over 7 years and 3 months (2 degrees of jurisdiction)	Yes.	1998
*24897/02	Rupnik, judgment of 13/04/2006, final on 13/07/2006	Over 6 years and 9 months (3 degrees of jurisdiction)	Yes.	1999
*38933/02	Šimek Hudomalj, judgment of 27/04/2006, final on 27/07/2006	About 5 years and 5 months (2 degrees of jurisdiction)	No.	1998
*25053/02	Škrablin, judgment of 13/04/2006, final on 13/07/2006	Over 8 years and 10 months (5 degrees of jurisdiction)	No.	1995
75810/01	Slemenšek, judgment of 30/03/2006, final on 30/06/2006	More than 9 years and 2 months (3 degrees of jurisdiction)	Yes.	1996
77779/01	Sluga, judgment of 30/03/2006, final on 30/06/2006	About 7 years (3 degrees of jurisdiction)	No.	1997
*21464/02	Soleša, judgment of 13/04/2006, final on 13/07/2006	Over 10 years and 1 month (3 degrees of jurisdiction)	No.	1995
*33538/02	Šolinc, judgment of 27/04/2006, final on 27/07/2006	Over 6 years and 10 months (3 degrees of jurisdiction)	No.	1997
*24784/02	Stradovnik, judgment of 13/04/2006, final on 13/07/2006	Over 10 years (3 degrees of jurisdiction)	Yes.	1995
*39160/02	Stropnik, judgment of 27/04/2006, final on 27/07/2006	Over 6 years and 6 months (3 degrees of jurisdiction)	No.	1997
75701/01	Videmšek, judgment of 30/03/2006, final on 30/06/2006	Almost 7 years (3 degrees of jurisdiction)	No.	1998
77512/01	Vidovič, judgment of 09/03/2006, final on 09/06/2006	Over 4 years and 6 months (2 degrees of jurisdiction)	No.	1995
*36550/02	Višnjar, judgment of 27/04/2006, final on 27/07/2006	Nearly 6 years and 7 months (3 degrees of jurisdiction)	No.	1997

Application	Case	Length of the proceedings at the date of the judgment of the European Court	Case pending at the date of the judgment of the European Court	Proceedings began
*22235/02	Witmajer, judgment of 13/04/2006, final on 13/07/2006	About 11 years and 7 months (1 degree of jurisdiction)	Yes.	1994 (when the Convention entered into force)
*24896/02	Zakonjšek, judgment of 13/04/2006, final on 13/07/2006	Nearly 5 years and 8 months (3 degrees of jurisdiction)	No.	1999
*9301/02	Zemljič, judgment of 13/04/2006, final on 13/07/2006	Over 7 years and 2 months (3 degrees of jurisdiction)	Yes.	1998
*35063/02	Zgonjanin, judgment of 27/04/2006, final on 27/07/2006	Over 8 years and 3 months (3 degrees of jurisdiction)	Yes.	1997
*16281/02	Žlender, judgment of 06/04/2006, final on 06/07/2006	7 years and 1 month (3 degrees of jurisdiction)	No.	1995
76434/01	Žnidar, judgment of 09/03/2006, final on 09/06/2006	Nearly 9 years and 11 months (4 degrees of jurisdiction)	No.	1994 (when the Convention entered into force)
75688/01	Žolger, judgment of 30/03/2006, final on  30/06/2006	Over 11 years and 8 months (3 degrees of jurisdiction)	Yes.	1994 (when the Convention entered into force)

These cases concern the excessive length of civil proceedings between 1994 and 2004 (violations of Article 6§1). Certain cases also concern the lack of an effective remedy in this respect (violations of Article 13). In the cases of Bauer, Cundrič and Golenja, the European Court also found that the judicial authorities should have treated the cases with special diligence since the proceedings at issue concerned employment disputes.

Individual measures: A number of cases were still pending when the European Court rendered its judgments. In one of the cases, the Cundrič case which concerned an employment dispute, the Court considered that urgent individual measures are needed. 

• Information is awaited on the state of the proceedings and on the measures taken or envisaged for their acceleration, if still pending.

General measures: These cases present similarities to the Lukenda case (judgment of 06/10/2005, see Section 4.2 for the 976th DH meeting), where the Slovenian authorities are currently adopting measures concerning the excessive length of judicial proceedings and the lack of effective remedy.

- 1 case against Spain

*1483/02           Panella Puig, judgment of 25/04/2006, final on 25/07/2006

This case concerns the violation of the presumption of the applicant’s innocence. In 1992 the Constitutional Court overturned military proceedings which had resulted in the applicant’s serving a prison term. The applicant lodged a request for compensation. This request was rejected by the Ministry of Justice and the administrative courts on the basis of doubts as to the applicant’s guilt, his conviction having been set aside on account of a violation of the principle of the presumption of innocence in respect of the inadequacy of the evidence adduced against him (violation of Article 6§2).

The European Court found that national authorities had applied Article 394(1) of the Structural Law on the Judiciary which provides that entitlement to compensation in respect of provisional detention is limited to those who are acquitted or those against whom proceedings have been definitively dropped because the accusations against them proved groundless.

The Court found that in this respect the authorities had treated the applicant with excessive severity, as his request was not related to provisional detention but to the sentence he had served and since, in addition, he had not been acquitted nor the charges against him dropped. Reliance on Article 394(1) had led them to examine whether the applicant’s responsibility for the alleged acts had been sufficiently established, and thus pronounce upon his guilt.

They might have applied Article 292, which covers more general situations of judicial error or dysfunction. The Court also underlined the fact that the applicant’s conviction had already appeared on his criminal record even though it had been definitively set aside by the Constitutional Court.

Individual measures:

• Information is awaited on the applicant’s present situation particularly concerning whether it is possible to reopen the compensation proceedings and the question of his criminal record.

General measures: The authorities are invited to provide information on measures possibly taken or envisaged to prevent new, similar violations. In any event, the publication and dissemination of the European Court’s judgment to the relevant courts and authorities, with a circular or note explaining the problems found by the Court seem necessary.

The Secretariat has written to the Spanish authorities inviting them to present an action plan for the execution of this judgment.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this item at their 2nd meeting in 2007 (DH), on the basis of further information to be provided by the authorities of the respondent state on: - publication and dissemination of the Court’s judgment, - possible additional measures to prevent new, similar violations, - the applicant’s situation and, if appropriate, individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicant.

- 1 case against Sweden

47473/99          Hellborg, judgment of 28/02/2006, final on 28/05/2006

The case concerns the authorities’ failure in their obligation to issue a building permit to the applicant within the statutory time-limit (violation of Article 1 of Protocol No.  1).

It also concerns the refusal by the Supreme Administrative Court to hold a hearing in the subsequent appeal lodged by the applicant. The European Court found in this respect that the applicant’s appeal to the Supreme Administrative Court, the first and only judicial instance to deal with the subject-matter of the appeal, was capable of raising such issues of law and of such complexity that no exceptional reasons could justify dispensing with a hearing (violation of Article 6§1).

Finally, the case concerns the excessive length of the proceedings before administrative authorities and courts (more than 13 years) in particular before the Building Committee (violation of Art. 6§1).

Individual measures: The Swedish Administrative Court Procedure Act allows the applicant, if he so wishes, to request the reopening of administrative proceedings having been found to violate the Convention. Moreover, the European Court awarded the applicant just satisfaction for the loss of real opportunities as well as for the non-pecuniary damages suffered.

• Assessment: this being the case, no further individual measure seems necessary.

General measures:

            1) Violation of Article 1 of Protocol No. 1: Given that the violation was due to an improper application of domestic law and that the case seems to be an isolated one, no general measures other than publication and dissemination of the European Court’s judgment to the relevant authorities seem to be needed.

            2) Violation of Article 6§1 (lack of a hearing): According to the Administrative Procedure Act, an oral hearing must be held if this has been requested by the person seeking judicial review and it’s not manifestly unnecessary. In this respect, the direct effect afforded by the Swedish courts to the European Court’s case-law seems to be sufficient to prevent new, similar violations.

            3) Violation of Article 6§1 (excessive length of administrative proceedings): This is only the second case concerning the excessive length of administrative proceedings in Sweden and thus there does not seem to be a systemic problem in this area. 

• Information is awaited: on the publication and dissemination of the European Court’s judgment to the relevant authorities.

- 1 case against Switzerland

*77551/01         Dammann, judgment of 25/04/2006, final on 25/07/2006

The case concerns a disproportionate interference with the applicant’s freedom of expression in that he was convicted of inciting another to disclose an official secret, under Section 320 in conjunction with Section 24§1 of the Swiss Criminal Code (violation of Article 10).

In 1997, the applicant, a Swiss journalist and court reporter, investigated a post office robbery. He obtained a list of names of persons being arrested in this context and asked an assistant at the office of the public prosecutor to see whether these individuals had any previous convictions. When the assistant agreed, he faxed her the list and received it back with the information requested. The applicant did not publish or otherwise make use of the information but apparently showed the fax to a policeman who reported the incident to the prosecuting authorities.

The European Court found that, as the information had not been communicated to the applicant in confidence and as the applicant had not used undue means to obtain the information, the Swiss government had to bear a large share of responsibility for the indiscretion committed by the assistant. Furthermore, no damage had been done to the persons concerned. In the light of these findings, the Court held that even though the applicant had been sentenced to a small fine, his conviction had amounted to a kind of censorship which risked discouraging him from investigative work and was likely to hamper the press in its role as a provider of information and watchdog.

Individual measures: The Court held that the finding of a violation constituted in itself sufficient just satisfaction with regard to non-pecuniary damage. Furthermore, the applicant may request reopening of the domestic proceedings under Articles 139a and 141 of the Federal Act on the Organisation of the Judiciary (Bundesgesetz über die Organisation der Bundesrechtspflege).

General measures: Given the direct effect of the European Court’s judgments under Swiss law, information is awaited on measures envisaged or taken to ensure adapting national case-law, in particular through dissemination and publication of the European Court’s judgment.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (December 2006) (DH), on the basis of information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case if necessary; 2.             agreed to resume consideration of this item at their 992nd meeting (3-4 April 2007) (DH),  on the basis of information to be provided by the authorities of the respondent state concerning general measures proposed to prevent new, similar violations.

- 2 cases against the “former Yugoslav Republic of Macedonia”

*13898/02         Dumanovski, judgment of 08/12/2005, final on 03/07/2006

The case concerns the excessive length of proceedings mainly before the Kumanovo Employment Bureau and the Ministry of Labour and Social Policy, relating to the applicant’s monthly unemployment compensation. Proceedings began in August 1995 and ended in September 2001 (recognition of right of individual petition: April 1997) (violation of Article 6§1).

Individual measures: None, the proceedings are closed.

General measures:

• Information awaited: on possible legislative or other measures to accelerate proceedings before the above administrative organs.

The authorities’ attention is also drawn to the CM Recommendation Rec(2004)6 to member states on the improvement of domestic remedies relating to Convention violations.

• Information is also awaited on any measures envisaged to provide effective remedies for this kind of violations.

Decision: The Deputies agreed to resume consideration of this item at their 3rd DH meeting in 2007 on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations.

*           *           *

Application	Case	Duration of proceedings	Courts involved		State of proceedings
*15056/02	Milošević, judgment of 20/04/06, final on 20/07/06	Since May 1993-		Skopje First Instance Court and Court of Appeal; Supreme Court	Pending

This case concerns the excessive length of certain civil proceedings (violation of Article 6§1).

Individual measures: Information is awaited on urgent measures required to accelerate the proceedings pending since May 1993.

General measures: The case presents similarities to those of Janeva and Atanasovic and others (section 4.2, Volume I).

• Information is awaited on:

(1) measures adopted or envisaged by the respondent state to acceleration proceedings before civil courts.

(2) measures adopted or envisaged for an effective domestic remedy in cases of excessively lengthy proceedings. The authorities’ attention is also drawn to Committee of Ministers’ Recommendation Rec(2004)6 to member states on the improvement of domestic remedies, and to measures adopted by other countries confronted with similar problems (see e.g. Final Resolutions ResDH(2005)60 on Horvat and 9 other cases against Croatia; ResDH(2005)67 on Jóri and 18 other cases against the Slovak Republic).

- 80 cases against Turkey

*46252/99         Ataman, judgment of 27/04/2006, final on 27/07/2006

The case concerns the authorities’ failure in their obligation to secure the right to life of the applicant’s son who killed himself during the military service in 1998.

The European Court noted that, although the psychological problems of the applicant’s son had been confirmed by a medical report while he was already in the army, the authorities did not take the necessary measures to protect his right to life. The Court also found that the investigation carried out after the death of the applicant’s son could not be considered as effective because it failed to enquire into the reasons behind the authorities’ failure to transmit his medical file to the military unit where he was serving (violation of Article 2). Lastly, the Court found that the inadequate investigation carried out into the death of his son deprived the applicant of an effective remedy (violation of Article 13).

General measures: The case presents similarities to the case of Kılınç Abdurrahman and others (examined by the Committee at its 966th meeting – June 2006) in which the Turkish authorities informed the Committee of the measures taken, in particular on the regulatory framework concerning the conditions to be fit for military service and on the supervision of the conditions during military service and the duties of those responsible for supervising any irregular situation of conscripts who are considered to be fit for military service.

Decisions: The Deputies 1.             agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction if necessary ; 2.             recalled that the other measures of execution required have already been adopted.

*           *           *

                       - Cases concerning the actions of security forces

a. Cases concerning lack of effective investigation into the deaths of applicants’ relatives

50739/99          Perk and others, judgment of 28/03/2006, final on 28/06/2006

52390/99          Şeker, judgment of 21/02/2006, final on 21/05/2006

These cases concern the failure of the authorities to carry out effective investigations into the killing of the applicants’ relatives during a raid carried out by the police in Istanbul in 1996 (in the case of Perk and others) and into the abduction and disappearance of the applicant’s son in south-east Turkey in 1999 (in the case of Şeker). The European Court identified several deficiencies in the investigations carried out by the national authorities, in particular in the way the evidence had been obtained in the respective case-files (violations of Article 2). The case of Şeker also concerns the lack of an effective remedy (violation of Article 13).

b. Cases concerning the inhuman and degrading treatment of the applicants and the absence of an effective remedy whereby complaint might be made

*47938/99         Akkurt, judgment of 04/05/2006, final on 04/07/2006

52165/99          Çalışır, judgment of 21/02/2006, final on 21/05/2006 

*48581/99         Demirel Kekil, judgment of 11/04/2006, final on 11/07/2006 

50125/99          Doğanay, judgment of 21/02/2006, final on 21/05/2006

*57916/00         Saygılı, judgment of 04/05/2006, final on 04/08/2006

879/02              Turan Devrim, judgment of 02/03/2006, final on 02/06/2006

These cases concern the inhuman and degrading treatment of the applicants while in the hands of the authorities. The European Court found that the government had failed to provide any explanations for the bruises observed on the applicants’ bodies (violations of Article 3). The cases of Akkurt and Doğanay also concern the absence of an effective remedy for their Convention grievances (violations of Article 13). 

c. Cases concerning the failure to respect procedural guarantees during detention in police custody

34482/97           Bilen, judgment of 21/02/2006, final on 21/05/2006

*42596/98+        Sarı and Çolak, judgment of 04/04/2006, final on 04/07/2006

*52392/99          Uçar, judgment of 11/04/2006, final on 11/07/2006

The case of Bilen concerns the inhuman and degrading treatment of the applicant while he was held in police custody for 18 days. This case also concerns the absence of an effective remedy to challenge the excessive length of detention in police custody (violation of Articles 3 and 5§§3 and 4).

The case of Sarı and Çolak concerns the incommunicado detention of the applicants for seven days in police custody without the possibility of having contact their families (violation of Articles 5§3 and 8).

The case of Uçar concerns the detention of the applicant’s son in police custody for nine days and the absence of an enforceable right to compensation for his detention (violation of Article 5§§3 and 5). This case also concerns the impossibility of the applicant to have access to his son while being kept in police custody (violation of Article 8). Lastly, the case concerns the absence of an effective remedy concerning the inadequacy of the investigation into the abduction and ill-treatment of the applicant’s son (violation of Article 13).

d. Cases concerning the absence of effective remedy for complaints concerning forced evictions from their villages    

*33240/96         Ağtaş, judgment of 02/02/2006, final on 03/07/2006

*33239/96         Artun and others, judgment of 02/02/2006, final on 03/07/2006

*33238/96+       Keser and others, judgment of 02/02/2006, final on 03/07/2006

*33247/96         Öztoprak and others, judgment of 02/02/2006, final on 03/07/2006

*33243/96         Şaylı, judgment of 02/02/2006, final on 03/07/2006

*36211/97         Yılmaz Kumru and others, judgment of 02/02/2006, final on 03/07/2006

These cases concern the absence of an effective remedy in respect of the applicants’ complaints that they had been forcibly evicted from their villages and their properties had been destroyed by security forces. In this respect, the European Court expressed serious doubts, in particular concerning the ability of administrative councils to carry out independent investigations into complaints such as the applicants’ (violation of Article 13).

General measures: These cases present similarities to the other cases concerning the actions of security forces in Turkey, which are being examined by the Committee (see 966th meeting, June 2006, Section 4.3, Volume I) (see also Interim Resolution ResDH(2005)43 adopted at the 928th meeting (June 2005) which takes stock of the measures already taken and points out the outstanding issues to be resolved).

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), in the light of additional information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases if necessary and to join them, at the same meeting, to the other cases concerning the actions of the security forces in Turkey in order to examine general measures to prevent new, similar violations.

*           *           *

60856/00          Eren Mürsel, judgment of 07/02/2006, final on 03/07/2006

The case concerns a violation of the applicant’s right to education in that the Higher Education Council arbitrarily decided to annul the applicant’s most recent results in the university entrance examination. The Council reasoned that his excellent achievement in his most recent attempt could not be explained given his poor results in the previous years. The applicant had failed to pass the first stage of the examination at his first three attempts between 1994 and 1996. At his last attempt in 1997 however, he passed both stages and obtained a high mark in the second stage, which would have allowed him to register at a university. The domestic courts confirmed the Council’s decision to annul, on the ground that the applicant had not achieved the result through his own knowledge and ability.

The European Court found that the annulment of the applicant’s examination results was unjustified. There was nothing to prove that he had cheated and no such accusation had been made against him. In addition, the applicant had prepared for the 1997 examinations by attending a private course (violation of Article 2 of Protocol No. 1)

Individual measures: Information is awaited concerning whether it is possible to reinstate the applicant’s examination results so that he can register at a university.

General measures: Information is awaited on the publication and dissemination of the judgment of the European Court, in particular to the Higher Education Council.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case, the general measures proposed to prevent new, similar violations and the individual measures to be taken in order to put an end to the violation and erase, as far as possible, its consequences for the applicant.

*           *           *

46257/99          İzmir Savaş Karşıtları Derneği and others, judgment of 02/03/2006, final on 02/06/2006

This case concerns the violation of the applicants’ right of freedom of association due to their criminal conviction in 1996 (confirmed by the Court of Cassation in 1998), for having taken part in international meetings abroad without the authorisation of the Ministry of Home affairs, required by former Article 43 of Law No. 2908 on Associations. The European Court noted that no other member state of the Council of Europe had a similar provision and concluded that such restriction to freedom of association did not pursue any of the legitimate objectives listed under Article 11 of the Convention (violation of Article 11).

Individual and general measure: Article 43 of the Law on Associations was abrogated in 2004 and as a consequence the applicants’ convictions and the effects thereof have been annulled, and new, similar violations will not occur.

*           *           *

28602/95          Tüm Haber Sen and Çınar, judgment of 21/02/2006, final on 21/05/2006

This case concerns the dissolution of the applicant trade union in 1995 solely on the ground that at the material time Turkish law did not allow civil servants to form trade unions, despite Turkey’s ratification of International Labour Organisation Convention No. 87 providing such a right. The European Court, also considering the European Social Charter, found that such an absolute prohibition did not meet a “pressing social need”, not least as nothing showed that the applicant trade union represented a threat. In view of the lack of clear legislative provisions on the subject and the broad manner in which the Turkish courts had interpreted the restrictions on civil servants' trade union rights, the Court found that Turkey had failed to comply with its positive obligation to secure the enjoyment of the applicant trade union's rights (violation of Article 11).

Individual and general measures: The applicant trade union was active between 1992 and May 1995, when it was dissolved. The prohibition on civil servants’ forming trade unions was lifted by legislative amendments shortly after the facts at the origin of this case. Turkey nonetheless remains, together with Greece, the only state party to the European Social Charter not to have accepted Article 5, concerning trade union rights. In view of the conclusions of this judgment and of the legislative changes already made, it would appear useful that Turkey accepts this article too.

• Information is expected on this. The Secretariat will write to the Turkish authorities inviting them to draft a plan of action for the execution of this judgment.

Decision: The Deputies agreed to resume consideration of this item at their 2nd DH meeting of 2007 at the latest, on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations.

*           *           *

64178/00+        Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş., judgment of 30/03/2006, final on 30/06/2006

This case concerns a violation of the applicant’s freedom of expression, a broadcasting company, due to warnings and suspensions of licence imposed upon it in 1998 and 1999 by the Turkish broadcasting regulatory authority (RTÜK) under Articles 4 a), g) and j) of Broadcasting Law No. 3984, concerning defamation and incitement to violence and to separatism. Contrary to the RTÜK and the Turkish administrative courts, the European Court considered that the statements at issue did not incite to violence or hate and covered questions of general interest. It furthermore took into account the fact that the applicant company had quoted the sources of the statements, which had already been published by other media without being prosecuted. Furthermore, the Court considered that the penalties had been disproportionately severe and therefore not necessary in a democratic society (violation of Article 10).

Individual measures: The Court awarded the applicant company just satisfaction in respect of the non-pecuniary damages sustained but not in respect of pecuniary damage, as the applicant company did not submit elements allowing such damage to be quantified. No further individual measure appears to be needed.

General measures: This case concerns, for the first time, the Turkish broadcasting system and the interpretation given by RTÜK and administrative courts to Article 4 of Law 3984. In the light of the many significant legislative and other measures taken in the last few years to improve freedom of expression in Turkey (see the Inçal case and the other cases concerning freedom of expression in Turkey examined in section 4.2 of the agenda of the 966th meeting, June 2006), information is needed on the impact, if any, of such measures on the current application of the provisions at the origin of this case.

• Information would also be useful about any legislative or other measures envisaged in respect of the criteria for issuing warnings and suspending licences in the broadcasting system. The judgment should also be translated and disseminated with a circular to administrative courts and the RTÜK.  

The Secretariat will write to the Turkish authorities inviting them to draft a plan of action for the execution of this judgment.

*           *           *

*50959/99         Odabaşı and Koçak, judgment of 21/02/2006, final on 03/07/2006

This case concerns an unjustified interference with the applicants’ freedom of expression on account of their criminal conviction, in 1998, for publishing a book which was considered by the Turkish courts to defame the memory of Atatürk, under Articles 1 and 2 of Law No. 5816. The European Court noted that the offending statements did not target Atatürk personally, but rather the Kemalist ideology, that the applicants had not made value judgments, that their work was based on information already available to the wide public and that the disputed passages did not incite to violence (violation of Article 10).

Individual measures: Mr Odabasi was sentenced to one year and six months’ imprisonment and Mr Koçak to a fine.

• Information is expected on their current situation as well as on the measures envisaged or taken in order to erase their conviction and all its consequences.

General measures: This case is the first concerning Law No. 5816 on crimes against the memory of Atatürk to come before the European Court. In the light of the many significant legislative and other measures taken in the last few years to improve freedom of expression in Turkey (see the case Inçal and the other cases concerning freedom of expression in Turkey examined under section 4.2 of the agenda of the 966th meeting, in June 2006), information is needed on the impact, if any, of such measures on the current application of the provisions at the origin of this case as well as on legislative or other measures envisaged in respect of such particular provisions. The judgment should furthermore be translated and disseminated to all criminal jurisdictions.

The Secretariat will write to the Turkish authorities inviting them to draft a plan of action for the execution of this judgment.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case if necessary, and to join it, at the same meeting, with the case of Inçal, to supervise the general measures proposed to prevent new, similar violations as well as the individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicants.

*           *           *

*47533/99         Ergin No. 6, judgment of 04/05/2006, final on 04/08/2006

This case concerns a violation of the applicant’s right to freedom of expression, as in 1999 he was fined under Article 155 of the former criminal code for having, as editor-in-chief of a newspaper,  published statements which were considered to incite to abstention from military service, which is compulsory in Turkey.

The European Court noted that the article did not incite to hatred or violence nor aim to provoke immediate desertion and concluded that the conviction was not “necessary in a democratic society” (violation of Article 10). The European Court also found that the court which tried the applicant, entirely composed of military judges, could not be regarded as an independent and impartial jurisdiction (violation of Article 6§1).

Individual measures: in addition to the payment of the just satisfaction awarded by the Court (also covering the fine paid), confirmation is expected of the erasure of all consequences of the violation found, namely the erasure of the applicant’s conviction from his criminal records.

General measures:

            1) Violation of Article 10: a new Criminal Code was adopted in June 2005, but does not appear to have decriminalised non-violent expression of opinions on conscientious objection. Accordingly, information is expected on the legislative changes required to bring the relevant provisions in conformity with the Convention. The European Court’s judgment should also be translated and sent out with a circular to criminal courts, so that they may take account of the Convention’s requirements when applying domestic law on incitement to abstention from military service. 

            2) Violation of Article 6: Law No. 4963, which entered into force in July 2003 (i.e. after the facts at the origin of this case), provides that military courts no longer have jurisdiction over civilians accused under former Article 155 of the Criminal code. A new Law (No. 5530), which entered into force on 5/07/2006, introduces further limits to the jurisdiction of military courts over civilians. The Court noted in this respect that Turkey is the only member state of the Council of Europe which explicitly provides the jurisdiction of military courts over civilians in peacetime and stressed that the conformity of such a situation with the Convention can be justified only under exceptional circumstances, where there are compelling reasons, and if so only on a clear and predictable legal basis. The Court furthermore pointed out that the existence of compelling reasons should be demonstrated, in concreto, for each case and that legal provisions attributing certain categories of crimes, in abstracto, to the jurisdiction of military courts are not compatible with the Convention (cf. judgment Ergin, §§ 38-49).

• More detailed information is required, in the light of the abovementioned findings of the Court, as to the jurisdiction of military courts over civilians, after the entry into force of Law No. 5530 of 5/07/06.

The Secretariat will write to the Turkish authorities inviting them to draft a plan of action for the execution of this judgment.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case if necessary as well as the individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicants.

*           *           *

*50692/99         Aydın Tatlav, judgment of 02/05/2006, final on 02/08/2006

This case concerns a violation of the applicant’s right to freedom of expression, on account of his criminal conviction, in 1999, under Article 175§3 of the former Criminal Code, for having published a book which Turkish courts considered to defile religion.

The European Court did not perceive an insulting tone or an abusive attack against believers or sacred symbols. It also considered that a criminal conviction involving moreover the risk of a custodial sentence could have the effect of discouraging the publication of dissenting opinions about religion and might impede the protection of pluralism, which was indispensable for the healthy development of a democratic society (violation of Article 10). The case also concerns the unfairness of the criminal proceedings on account of the failure to communicate to the applicant the Principal Public Prosecutor’s opinion (violation of Article 6§§1 and 3b).

Individual measures: The applicant’s conviction was erased from his criminal file on 21/07/2004. All remaining consequences of the violations for the applicant, including the reimbursement of the sum that he had been sentenced to pay, were taken into account by the European Court in the award of just satisfaction. 

General measures:

            1) Violation of Article 10: Following the entry into force of the new Criminal Code on 1/06/2005, the provision at the origin of this case no longer applies.

            2) Violation of Article 6: The case presents similarities to that of Mehmet Göç (36590/97, Grand Chamber judgment of 11/07/02), (Section 6.2, Volume II): a new provision was added by Law No. 4778 of January 2003 to Article 316 of the Code of Criminal Procedure requiring notification of written opinions of the Principal Public Prosecutor to parties by the competent chamber of the Court of Cassation.

This provision was subsequently included in Article 297 of the new Code of Criminal Procedure adopted on 17/12/2004, which entered into force on 01/06/2005.

Decisions: The Deputies 1.             took note of the individual and general measures taken in this case; 2.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in this case if necessary.

*           *           *

*60608/00         Emin Yıldız Mehmet and others, judgment of 11/04/2006, final on 11/07/2006

This case concerns a disproportionate interference in the freedom of expression of the applicants, who are the owner and the staff of the daily newspaper 2000’de Yeni Gündem, on account of the ban on introduction and distribution of the newspaper, imposed on 1/06/2000 by the governor in a region subject to the state of emergency under article 11 e) of Law No. 2935 on the state of emergency. According to Article 7 of Legislative Decree No. 285 declaring the state of emergency, no administrative decision taken by the governor of a region under the state of emergency rule was subject to judicial review.

The Court concluded that this absence of any judicial scrutiny of the governor's banning orders had violated the applicants' right to freedom of expression as well as their right to effective remedies (Violation of Articles 10 and 13).

Individual measures: The applicants are not suffering any consequences of the violations found. The European Court has awarded just satisfaction in respect of the non-pecuniary damage sustained.

General measures: This case is similar to that of Çetin and others (40153/98, judgment of 13/02/03, final on 13/05/03), during the examination of which the Turkish authorities informed the Secretariat that Legislative Decree No. 285 declaring the state of emergency had been cancelled in November 2002. Since the decree is no longer in force, there is no risk of similar violations occurring, as the current legislation provides judicial remedies.

*           *           *

                       - Cases concerning freedom of expression

Applications	Cases	Date of conviction	Ground for conviction	Date of erasure from criminal records
*34520/97	Alınak and others, judgment of 04/05/2006, final on 04/08/2006	15/07/96	Article 8 Anti-terror law	-
*46733/99	Dicle No. 2, judgment of 11/04/2006, final on 11/07/2006	05/08/98	Article 312 Criminal Code	30/05/03
50934/99	Koç and Tambaş, judgment of 21/03/2006, final on 21/06/2006	22/06/99	Article 6 and 8 Anti-terror law	06/06/03
*57299/00	Varlı and others, judgment of 27/04/2006, final on 27/07/2006	08/02/99	Article 312 Criminal Code	-
*62230/00	Yılmaz Sevgi, judgment of 11/04/2006, final on 11/07/2006	01/12/099	Article 312 Criminal Code	-

These cases relate to unjustified interferences with the applicants' freedom of expression, in particular on account of their convictions by state security courts following public speeches or books or articles published (convictions under former Article 312 of the criminal code or under Article 6 of the Anti-terrorism law or under former Article 8 of the Anti-terrorism Law: see table) (violations of Article 10).

The cases of Alınak and others and Varlı and others also concern violations of the applicants’ right to a fair trial before an independent and impartial court on account of the presence of a military judge on the bench of the state security courts which judged and convicted them (violations of Article 6§1).

Individual measures: Confirmation is expected of the erasure of all consequences of the violations found in the cases of Alınak and others, and Yilmaz Sevgi, namely the erasure of the applicants’ convictions from their criminal records. 

Furthermore, the European Court indicated in the case of Varlı and others that where an applicant had been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal. However, the applicants' cases are not eligible for reopening under current legislation because the judgments of the European Court became final after 04/02/2003, the date of entry into force of Law No. 4793 allowing reopening of proceedings found to be contrary to the Convention.

General measures:

                   1) Violations of Article 10: these cases present similarities to the group of cases concerning violations of freedom of expression, which were examined in Section 4.2 of the agenda of the 966th meeting (see also ResDH(2004)38 and CM/Inf(2003)43).

                   2) Violations of Article 6§1: these cases present similarities to that of Çiraklar against Turkey (judgment of 28/101998) which was closed by Resolution DH(99)555 following the adoption of legislative and constitutional amendments modifying the composition of state security courts and putting an end to the participation of military magistrates and prosecutors within these courts. On 07/05/2004, Parliament approved a constitutional amendment abolishing state security courts. 

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in these cases and to join them, at the same meeting, with the other cases concerning freedom of expression, to supervise the general measures proposed to prevent new, similar violations as well as the individual measures to put an end to the violations and erase, as far as possible, their consequences for the applicants.

*           *           *

*57175/00         İmrek, judgment of 13/07/2006 - Friendly settlement

This case concerns an alleged unjustified interference with the applicant’s freedom of expression on account of his conviction, in 1999, under Article 312 of the Criminal Code, following a speech delivered in 1998 (complaint under Article 10). The case also concerns allegations of unfairness of the criminal proceedings which led to his conviction, on account of the non-communication to the applicant of the written opinion of the Prosecutor General before the Court of Cassation (complaint under Article 6).

*           *           *

32458/96          Saday, judgment of 30/03/2006, final on 30/06/2006

This case concerns a violation of the applicant’s right to freedom of expression due to the disproportionate severity of the sentence served in 1995 by the applicant, namely 2 months of solitary confinement, for contempt of court under Article 23§§3 and 4 of Law No. 2845 (violation of Article 10). The statements at the origin of this sanction had been pronounced during criminal proceedings before the state security courts which resulted, in 1998, in the applicant’s being sentenced to life imprisonment for having been member of an illegal armed organisation. The European Court found that the state security courts which convicted the applicant could not be considered independent and impartial, on account of the presence in their bench of a military judge (violation of Article 6§1). 

Individual measures:

            1) Violation of Article 6§1: The European Court has indicated that where an individual has been convicted by a court which did not meet the Convention’s requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the Turkish Code of Criminal Procedure does not authorise reopening of the criminal proceedings in this case, as it only provides for the reopening of proceedings in respect of the Court's judgments which became final before 04/02/2003 or judgments rendered in applications lodged with the Court after 04/02/2003. In this respect, the case presents similarities with the case of Gençel (Section 4.1, Volume I).

            2) Violation of Article 10: On the basis of the available information, it appears that the consequences of the violation have been compensated in the framework of the just satisfaction awarded by the Court and that the applicant is not suffering from any further outstanding consequences of the violation.

General measures:

1) Violation of Article 6§1: This case presents similarities to that of Çıraklar against Turkey (judgment of 28/10/1998) which was closed by a final resolution, DH(99)555, following the legislative and constitutional amendments changing the composition of state security courts and ending the functions of military judges and military prosecutors in these courts. On 07/05/2004, Parliament approved a constitutional amendment abolishing state security courts.

2) Violation of Article 10: Information is expected on the legislative or case-law changes required to bring the application of Article 23 of Law 2845 in conformity with the Convention, preventing imposition of disproportionate sentences in cases of contempt of court. The judgment should also be translated and disseminated with a circular to criminal courts.  

The Secretariat will write to the Turkish authorities inviting them to draft a plan of action for the execution of this judgment.

*           *           *

                       - Cases concerning independence and impartiality of state security courts

50282/99          Bulut Adem and others, judgment of 02/03/2006, final on 02/06/2006

*56835/00         Çelik and others, judgment of 20/04/2006, final on 20/07/2006

*55373/00         Demir Fikri, judgment of 11/04/2006, final on 11/07/2006

*52782/99         Erçıkdı and others, judgment of 11/04/2006, final on 11/07/2006

*54479/00         Güzel No. 1, judgment of 04/04/2006, final on 04/07/2006

*44785/98         Kiper, judgment of 23/05/2006, final on 23/08/2006

42434/98          Mut, judgment of 11/04/2006, final on 11/07/2006

*13797/02         Şuyur, judgment of 23/05/2006, final on 23/08/2006

60011/00          Tanrıkulu and Deniz, judgment of 18/04/2006, final on 18/07/2006

48060/99          Tokay and Ulus, judgment of 23/03/2006, final on 23/06/2006

*48544/99         Uzun, judgment of 20/04/2006, final on 20/07/2006

*57965/00         Yayan İbrahim, judgment of 20/04/2006, final on 20/07/2006

These cases concern the violation of the applicants' right to a fair trial by an independent and impartial court on account of the presence of a military judge on the bench of the state security courts which tried and convicted them.

The cases of Kiper, Şuyur, Tanrıkulu and Deniz and Uzun also concern the excessive length of proceedings (violations of Article 6§1).

The Şuyur case also concerns the excessive length of the applicant' detention on remand. In this respect, the European Court found that the relevant judicial decisions, in only using general wording, such as “taking into account the nature of the crime and the state of evidence” did not provide sufficient information as to the reasons justifying the applicant being kept in detention (violation of Article 5§3).

Individual measures: These cases present similarities to those scheduled for examination in Section 4.1 (See Volume I).

The European Court considered that where an individual has been convicted by a court which did not meet the Convention’s requirements of independence and impartiality retrial or reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the applicants cannot obtain the reopening of proceedings because the provisions of Code of Criminal Procedure on reopening do not apply in the applicants’ cases (see the similar cases in Section 4.1 for the measures expected to be taken).

The proceedings against the applicants in the cases of Kiper, Şuyur, Tanrıkulu and Deniz and Uzun are closed.

General measures:

            1) Independence and impartiality of state security courts: These cases present similarities to that of Çıraklar against Turkey (judgment of 28/10/1998) which was closed by Final Resolution DH(99)555, following the legislative and constitutional amendments changing the composition of state security courts and ending the functions of military judges and military prosecutors in these courts.

            2) Length of detention on remand: See Demirel Group (Section 5.1, Volume i)

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in these cases and to join them, at the same meeting, with the group of cases Gençel, to supervise individual measures to put an end to the violations and erase, as far as possible, their consequences for the applicants.

*           *           *

- Cases concerning ill treatments suffered by the applicants and the lack of independence and impartiality of state security courts

42579/98          Demir Murat, judgment of 02/03/2006, final on 02/06/2006

*40986/98         Soner and others, judgment of 27/04/2006, final on 27/07/2006

These cases concern the ill-treatment of the applicants during police custody (only the applicant Soner in the case of Soner and others) and absence of an effective domestic remedy in this respect (violations of Article 13 combined with Article  3).

They also concern the violation of the applicants' right to a fair trial by an independent and impartial court on account of the presence of a military judge on the bench of the state security courts which tried and convicted them (violations of Article 6§1).

The case of Demir Murat also concerns the length of proceedings (five and a half years) (violation of Article 6§1).

Individual measures: As regards the violations of Article 6§1, these cases present similarities to the other cases concerning the independence and impartiality of state security courts. The European Court has reiterated its view that in cases where an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal. The applicants cannot obtain reopening of proceedings for the reasons explained in relation to other, similar cases.

• Information expected: on the applicants' situation and the measures envisaged to ensure them proper redress, particularly in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing the judiciary to give direct effect to the Convention (Article 90 of the Constitution).

General measures:

            1) Violations of Article 3: These cases present similarities to the other cases concerning the actions of security forces in Turkey, which are being examined by the Committee (in this connection see Interim Resolution ResDH(2005)43 adopted at the 928th meeting (June 2005) which takes stock of the measures already taken and points out the outstanding issues to be resolved).

            2) Violations of Article 6§1:

These cases present similarities the other cases concerning the independence and impartiality of state security courts.

Regarding the length of proceedings in the case of Demir Murat, state security courts were abolished in May 2004.

Decisions: The Deputies 1              agreed to resume consideration of these items at their 982nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in these cases; 2.             decided to join these cases, at the same meeting, to the group of cases Gültekin and others, with a view to examining further information to be provided by the authorities of the respondent state concerning individual measures to put an end to the violations and, as far as possible, to erase their consequences for the applicants.

*           *           *

                       - Cases of length of criminal proceedings

39977/98          Atkın Mehmet, judgment of 21/02/2006, final on 21/05/2006

*74798/01         Karakaş and Bayır, judgment of 11/04/2006, final on 11/07/2006

These cases concern the excessive length of criminal proceedings (seven years and seven months in the case of Atkın and five years and two months in the case of Karakaş and Bayır) (violation of Article 6 § 1).

Individual measures: None. There are no pending proceedings.

General measures: These cases are similar to the Ormancı group (to be examined at the 982nd meeting, December 2006). For this group, the Committee is expecting information on the adoption of draft laws which are destined to prevent lengthy proceedings as well as on the introduction of effective domestic remedies in this respect.

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction awarded in these cases and to join them, at the same meeting, with the Ormancı group to supervise the general measures proposed to prevent new, similar violations.

*           *           *

*44754/98         Yaşar Emin, judgment of 11/04/2006, final on 11/07/2006

This case concerns the excessive length of criminal proceedings in particular before the Erzincan Martial Law Court, which was abolished by a Law of 27/12/1993, and also partly before ordinary criminal courts. The proceedings began in August 1980 and ended in June 1997 (17 years of which 10 fall under the Court's jurisdiction) (violation of Article 6§1). The applicant was released pending trial in April 1988.

Individual measures: None. There are no pending proceedings.

General measures: This case presents similarities to that of Şahiner and others against Turkey, which was closed by final resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolition of these courts.

Decisions: The Deputies 1              agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction; 2.             recalled that the other measures required for execution had already been taken.

*           *           *

                       - Cases of excessive length of detention on remand

Applications	Cases	Length of detention on remand	Length of the criminal proceedings
*58398/00	Ceylan Hasan, judgment of 23/05/2006, final on 23/08/2006	5 years and 2 months	-
*40994/98	Katar and others, judgment of 18/04/2006, final on 18/07/2006, rectified on 21/08/2006	6 years and 1 month (only Mr. Katar)	7 years and 6 months (Mr. Özcan and Mr. Aytu) 12 years (Mr. Katar)
21179/02	Taş Sabri, judgment of 20/09/2005, final on 20/12/2005, revised on 25/04/2006, final on 25/07/2006	10 months	8 years

These cases primarily concern the excessive length of the applicants' detention on remand.

In this respect, the European Court found that the relevant judicial decisions, in only using general wording, such as “taking into account the nature of the crime and the state of evidence” did not provide sufficient information as to the reasons justifying the applicants' being kept in detention (violations of Article 5§3).

In addition, the cases of Katar and Others and Taş concern the excessive length of proceedings (violations of Article 6§1).

Individual measures: The applicants are no longer detained on remand and there are no proceedings pending against them.

General measures:

            1) Violations of Article 5§3: These cases present similarities to the Demirel group (Section 5.2, Volume I).

            2) Violations of Article 6§1: The Committee is currently examining the measures taken in the Ormancı group (see 966th meeting, June 2006). In this respect, the Committee is expecting information on the adoption of draft laws to prevent lengthy proceedings and introduce effective domestic remedies.

State security courts were abolished by the constitutional amendments of May 2004.

*           *           *

*40996/98         Okatan, judgment of 13/07/2006 - Friendly settlement

The case concerns the applicant’s complaints concerning excessive length of his detention in police custody and the independence and impartiality of a state security court (Complaints under Articles 5§3 and 6§1).

*           *           *

*35073/97         Başlık and others, judgment of 20/04/2006, final on 20/07/2006

The case concerns the length of proceedings before the Istanbul State Security Court (almost nine years) (violation of Article 6 § 1).

Individual measures: None. Proceedings ended.

General measures: State security courts were abolished with the constitutional amendments of May 2004.

*           *           *

- Cases concerning length of detention in police custody

51176/99          Anyığ and others, judgment of 23/03/2006, final on 23/06/2006

48069/99          Çoban, judgment of 21/02/2006, final on 21/05/2006

35979/97          Korkmaz and others, judgment of 21/03/2006, final on 21/06/2006

*52083/99         Maçın, judgment of 04/05/2006, final on 04/08/2006

*77649/01         Mete Ahmet, judgment of 25/04/2006, final on 25/07/2006

*59246/00         Rüzgar, judgment of 04/05/2006, final on 04/08/2006

*4528/02           Şevk, judgment of 11/04/2006, final on 11/07/2006

*41676/98         Yılmaz Mehmet Ertuğrul and others, judgment of 04/05/2006, final on 04/08/2006

These cases concern the applicants' prolonged detention in police custody (violations of Article 5§3).

The cases of Çoban, Maçın and Korkmaz and others also concern the fact that the applicants could not obtain a speedy determination of the lawfulness of their detention by a court (violations of Articles 5§4).

The Rüzgar case also concerns the unlawful detention of the applicant in police custody for almost five days (violation of Article 5§1 (c)) and the case of Şevk concerns the failure of domestic courts to examine the applicant’s request for release from detention on remand speedily (violation of Article 5§4).

General measures:

            1) Failure to bring the applicants promptly before a judge after his arrest (Article 5§3): legislative reform commenced in 2001, see case of Sakık and others against Turkey (Final Resolution DH (2002)110). Article 91 of the Turkish Code of Criminal Procedure, in force since 01/06/2005, today provides for a right of detainees to see a judge within 24 hours in regular cases and 3 days in exceptional cases, the decision to extend to be taken by the prosecutor and open to an appeal to the court.

            2) Lack of a remedy by which the applicants might have the lawfulness of his continued detention in police custody decided promptly by a court (Article 5§4): Article 91 of the Turkish Code of Criminal Procedure of 1/06/2005 provides for a sufficient remedy, which extends the safeguards previously existing in Turkish law (see aforementioned final resolution in the case of Sakık) now provides for a sufficient remedy.

            3) Failure to examine the lawfulness of the applicant’s detention on remand speedily (Article 5§4), Article 105 of the new Code of Criminal Procedure provides that requests for release from detention on remand shall be decided within three days after the request. This decision is subject to appeal.

*           *           *

77109/01          Hocaoğulları, judgment of 07/03/2006, final on 07/06/2006

*28137/02         Şahin Çağdaş, judgment of 11/04/2006, final on 11/07/2006

4124/02            Tosun, judgment of 28/02/2006, final on 28/05/2006

These cases concern unfairness of proceedings due to the non-communication of the written observation of the Public Prosecutor before the Court of Cassation to the applicants (violations of Article 6 § 1).

General measures: A new provision was added by Law No. 4778 of January 2003 to Article 316 of the Code of Criminal Procedure requiring notification of written opinions of the Principal Public Prosecutor to parties by the competent chamber of the Court of Cassation. This provision was subsequently included in Article 297 of the new Code of Criminal Procedure adopted on 17/12/2004, which entered into force on 01/06/2005.

*           *           *

*41496/98+       Ademyılmaz and others, judgment of 21/03/2006, final on 03/07/2006

This case concerns the absence of an effective remedy against decisions taken by the Governor of Diyarbakır under the state of emergency to transfer the posts of the applicants (who are teachers, as well as members of trade unions) to towns outside the state of emergency region.

The European Court noted that Article 4 (g) of Decree-Law No. 285 granted the Governor wide-ranging powers with regard to the transfer of posts, and thus found that there was no remedy available under Turkish law to enable the applicants to challenge those decisions (violations of Article 13).

General and individual measure: This case presents similarities to the case of Güneri and others, in which the Turkish authorities appear to have taken the necessary measures to prevent future similar violations (Section 6.1, 966th meeting, June 2006).

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- Cases concerning delays by the administration in paying additional compensation for expropriation and the applicable rate of default interest

*42911/98         Bodur and others, judgment of 04/04/2006, final on 04/07/2006

76478/01          Doğan Cuma Ali and Betül, judgment of 21/02/2006, final on 21/05/2006

*23322/02         Halil Yiğit Ibrahim, judgment of 25/04/2006, final on 25/07/2006

*23323/02         Kaçar Çerkez, judgment of 25/04/2006, final on 25/07/2006

*72970/01         Karaaslan, judgment of 04/04/2006, final on 04/07/2006

76480/01          Kavasoğlu, judgment of 21/02/2006, final on 21/05/2006

*23324/02         Kendirci Halil, judgment of 25/04/2006, final on 25/07/2006

*28169/02         Kılınc Mehmet, judgment of 11/04/2006, final on 11/07/2006

*35768/02         Kökmen, judgment of 20/04/2006, final on 20/07/2006

*23321/02         Özdemir Bekir, judgment of 25/04/2006, final on 25/07/2006

*23325/02         Özdemir and others, judgment of 25/04/2006, final on 25/07/2006

64438/01          Ülker İbrahim and others, judgment of 23/03/2006, final on 23/06/2006

75717/01          Yüce, judgment of 21/02/2006, final on 21/05/2006, rectified on 07/07/2006

These cases concern the violation of the applicants’ right to the peaceful enjoyment of their possessions due to the administration's delay in paying additional compensation for expropriation of their property and the difference between the default interest rate applicable at the time to the debts owed to the state and the average rate of inflation in Turkey (violations of Article 1 of Protocol No. 1).

Individual measures: The pecuniary prejudice suffered by the applicants was remedied by the European Court through the grant of just satisfaction. Thus no individual measure would appear to be necessary.

General measures: These cases present similarities to those of Akkuş and Aka against Turkey (judgments of 09/07/1997 and 23/09/1998) closed by Resolutions ResDH(2001)71 and ResDH(2001)70 respectively, following a legislative reform which brought the statutory rate of default interest into line with the annual rediscount rate applied by the Turkish Central Bank to short-term debts (the latter rate is fixed and permanently reviewed, taking into account particularly the country's inflation rate).

- 15 cases against Ukraine

*32478/02         Shevchenko, judgment of 04/04/2006, final on 04/07/2006

The case concerns the failure to conduct an effective and independent investigation into the death of the applicant’s son in October 2000 while he was posted as a guard in a military unit (procedural violation of Article 2).

The European Court noted certain important inconsistencies and deficiencies in the investigation. It also observed that the inquiry had not satisfied the minimum requirements of independence as it was biased by

the emphasis placed on the suicide theory by a senior officer and the fact that the independence of the investigators from the Military Prosecutor’s Office was not ensured since they were servicemen, subject to military discipline. The European Court also pointed out the lack of exemplary diligence, since no reconstruction of events was attempted and no forensic examination of the hands of the deceased was conducted as regards possible gunshot residue. Finally, the investigation did not ensure sufficient public accountability or scrutiny or safeguard the interests of the next-of-kin since the applicant, contrary to the usual practice under national law, was excluded from the proceedings by the refusal to grant him victim status.

Individual measures: According to the European Court’s judgment, a final report of the investigation into the death of the applicant’s son, supporting the suicide theory and closing the case, was drew up on 29/04/02.

• The attention of the authorities should be drawn to their continuing obligation to conduct an effective investigation to remedy procedural violations of Article 2 found by the European Court (see e.g. Interim Resolution ResDH(2005)20, Action of the Security Forces in Northern Ireland). A new investigation should comply with the Convention’s requirements, as set out by the European Court in its case-law.

• Information in this respect is awaited.

General measures: The problem of the failure to conduct an effective investigation has already been raised before the Committee of Ministers in the context of the procedural violation of Article 2 (see Gongadze, Volume I) and Article 3 (see e.g. Afanasyev, Volume I). The Shevchenko case concerns a new issue relating to the failure to conduct an effective and independent investigation into the death of a military serviceman while on duty.

• The Ukrainian authorities are invited to provide information on measures taken or envisaged to remedy the shortcomings identified by the European Court, relating in particular to the independence of the investigation, exemplary diligence and promptness and public scrutiny in the army. Such measures may require changes in the legal and regulatory framework governing this kind of investigation. Appropriate training and awareness-raising measures would also appear necessary.

The publication and dissemination of the Court's judgment among the relevant authorities and domestic courts is also expected, possibly together with circulars or explanatory notes stressing the problems identified by the European Court.

The Secretariat will write to the Ukrainian authorities inviting them to present an action plan for the execution of this judgment.

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72286/01          Melnik, judgment of 28/03/2006, final on 28/06/2006

The case concerns the poor detention conditions suffered by the applicant after conviction, between September 2000 and March 2006 in three different prisons in Ukraine (Vinnytsia Prison No.1, Arbuzynsk Penitentiary No. 316/83, Snigurivska Penitentiary No. 5). The Court found that the overcrowding (1 to 2.5 m² per inmate), inadequate medical care (failure to diagnose and cure the applicant’s tuberculosis) and unsatisfactory conditions of hygiene and sanitation taken together with the duration of the applicant’s detention amounted to degrading treatment (violation of Article 3).

The case also concerns the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of his treatment and conditions of detention (violation of Article 13).

Individual measures: The applicant was detained when the European Court rendered its judgment.

• Information is expected on the current situation of the applicant and, if appropriate, measures taken to improve the conditions of his detention and to provide him with adequate medical treatment.

General measures:

            1) Violation of Article 3: The issue of unsatisfactory detention conditions has already arisen with regard to pre-trial detention (see Nevmerzhitsky case).

• Information is now also expected on measures taken or envisaged to ensure that the living conditions, medical care and conditions of detention of convicted detainees meet the standards of Article 3 of the Convention. The Ukrainian authorities may wish to take into consideration the measures taken by other countries in response to similar violations found by the Court (see, e.g., Interim Resolution ResDH(2005)21 concerning the issue of conditions of detention in Greece, raised in the cases of Dougoz against Greece and Peers against Greece)

            2) Violation of Article 13:

• The Ukrainian authorities are invited to ensure provision of an appropriate remedy enabling the complaints in respect of the treatment in and conditions of detention.

The publication and dissemination of the Court’s judgment among the relevant authorities and domestic courts is also expected, possibly together with circulars or explanatory notes stressing the problems identified by the European Court.

The Secretariat will write to the Ukrainian authorities inviting them to present an action plan for the execution of this judgment.

*           *           *

6965/02            Savinskiy, judgment of 28/02/2006, final on 28/05/2006

The case concerns the breach of the principle of legal certainty resulting from quashing of a final decision rendered by a criminal court in the applicant’s favour by means of the supervisory review procedure initiated under former Chapter 31 of the Code of Criminal Procedure by the President of the Regional Court in 2000 and 2001 (violation of Article 6§1).

The European Court noted in particular that the manner in which the President and Presidium of the Regional Court insisted on substituting a more serious charge and heavier sentence in the criminal case against the applicant was in itself incompatible with the requirements of a fair trial.

Individual measures: According to the European Court’s judgment, on 09/07/2002 the Supreme Court of Ukraine allowed the applicant’s appeal on a point of law. Thus the applicant was partly acquitted of charges and absolved from his sentence under the Amnesty Law of 11/05/2000.

General measures: The case presents similarities to the Salov case (966th meeting, Section 4.2, Volume I) in which the Committee is supervising the adoption of general measures with respect to the application of the supervisory review procedure and judicial independence and impartiality.

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23436/03          Melnyk, judgment of 28/03/2006, final on 28/06/2006

The case concerns a violation of the applicant’s right of access to a court. On 29/04/2002 the Court of Cassation, retroactively applying the new Code of civil Procedure, dismissed as out of time her appeal on a point of law.

The European Court considered that while the retroactive application of civil law was not contrary to the Convention as such, in the present case there was no transitory measure expressly providing retroactivity of the new text. In addition, if she was to comply with the new time-limit for appeals, the applicant would have had to lodge her appeal before the new Code entered into force. The Court therefore concluded that the retroactive application of the Code had undermined the principle of legal certainty and was not proportionate to the purpose of the legislative change (violation of Article 6§1).

Individual measures:

• Information is expected on whether the applicant may challenge the decision of the Vinnitsa Court of Appeal of 27/02/2002 dismissing her claim.

General measures: Given the time elapsed since the adoption of the new Code of Civil Procedure the problem is not like to arise in the future.

• Information is expected on publication of the European Court's judgment.

*           *           *

- Cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Application	Cases	Date of domestic judgments	Outcome of the enforcement of domestic judgments
35132/02	Berestovyy, judgment of 28/02/2006, final on 28/05/2006	8/02/2001	Enforced
9254/03	Gaponenko, judgment of 28/02/2006, final on 28/05/2006	5/08/1999	Unenforced
4292/04+	Glova and Bregin, judgment of 28/02/2006, final on 28/05/2006	15/05/2000 16/05/2000	Both partially unenforced
36684/02+	Komar and others, judgment of 28/02/2006, final on 28/05/2006	Several judgments	All of them enforced
*17899/02	Lisyanskiy, judgment of 04/04/2006, final on 04/07/2006	29/09/2000 8/05/2001	Partially unenforced
*32021/03	Nosovets, judgment of 26/04/2006, final on 26/07/2006	16/06/2000	Enforced
*9719/02	Pomazanyy and Shevchenko, judgment of 04/04/2006, final on 04/07/2006	6/05/1998 and 14/12/2001 29/04 and 14/06/1998 and 25/11/11999 and 14/12/2002	Partially unenforced
31095/02	Shcherbaky, judgment of 28/03/2006, final on 28/06/2006	24/02/1999	Enforced
16329/03	Shchukin, judgment of 28/02/2006, final on 28/05/2006	17/12/2001	Unenforced
*3955/04+	Zubko and others, judgment of 26/04/2006, final on 26/07/2006	Several judgments	All enforced

These cases concern violations of the applicants' right to effective judicial protection due to the failure or substantial delay by the administration in execution of final judicial decisions delivered in the applicants' favour and mainly concerning salary arrears and other payments (violations of Article 6§1).

In some of these cases the European Court also found consequent violations of the applicant's right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1) and/or of Article 13 due to the lack of an effective remedy to expedite the proceedings or to provide the applicants with adequate redress for delays incurred.

Individual measures: In the cases mentioned in bold in the table above, the Court found that the respondent state must secure the payment of the sums still owed to the applicants within 3 months from the date on which the European Court's judgments become final.

General measures: These cases present similarities to those in the Zhovner group (Section 4.2), in which the Committee is supervising the adoption of comprehensive general measures.

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), in the light of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in these cases if necessary and to join them, at the same meeting, with the Zhovner cases to examine the general measures proposed to prevent new, similar violations as well as individual measures to put an end to the violation and, to the extent possible, erase its consequences for the applicant.

*           *           *

*7324/02           Kobtsev, judgment of 04/04/2006, final on 04/07/2006

This case concerns the excessive length of criminal proceedings against the applicant. They began in October 1998 and lasted three years and two months (violation of Article 6§1).

Individual measures: None: proceedings closed. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

General measures: The case presents similarities to the Merit group of cases (Section 4.2, Volume I) in which the Committee is supervising the adoption of general measures.

- 3 cases against the United Kingdom

*32570/03         Grant, judgment of 23/05/2006, final on 23/08/2006

This case concerns the violation of the right to respect for her private life of the applicant, a post-operative, male-to female transsexual, due to the authorities’ failure to give legal recognition to her gender change in respect of her pension rights. She was denied an old-page pension at the age applicable to women (60), the authorities contending that she would only be entitled to a state pension when she reached 65, the retirement age applicable to men (violation of Article 8).

Individual measures: The European Court awarded the applicant 1 700 euros for pecuniary damage (covering the 3 month 17 day difference between the date upon which when she was wrongfully refused a state pension and that upon which she started receiving a pension). The Court noted that the applicant only became a victim of a violation of the Convention after the Christine Goodwin judgment (application No. 28975/95) was delivered on 11/07/2002 by the European Court in a similar case and the applicant’s application for a pension was refused (05/09/2002). The applicant was awarded a state pension on 22/12/2002, at the retirement age applicable to men (65).

The European Court did not award non-pecuniary damage, recalling that in the Christine Goodwin judgment, it had considered that such an award was not appropriate and that the essence of redress lay in the implementation by the Government of the necessary measures to secure compliance with Article 8 rights.

On 25 April 2005 the applicant was issued with a Gender Recognition Certificate.

General measures: The Gender Recognition Act 2004 has been adopted by Parliament since the introduction of this application. It should be noted that it was adopted in the context of the execution of the Christine Goodwin judgment mentioned above (948th meeting, November 2005, Section 6.1, Volume I). The Act received Royal Assent on 1/072004 and was brought into force in full on 04/04/2005. Under the Act, individuals who satisfy certain criteria are able to apply to a Gender Recognition Panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the state retirement pension are paid according to the acquired gender.

Moreover, on 02/10/2000, the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be invoked in domestic proceedings in the United Kingdom.

Decisions: The Deputies, 1.             agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH) on the basis of further information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded in this case if necessary; 2.             recalled that the other measures required for execution had already been taken.

*           *           *

8866/04            Hussain, judgment of 07/03/2006, final on 07/06/2006

This case concerns a judge’s refusal in September 2003 to grant the applicant costs, on the ground that in the judge’s view the applicant was in fact guilty as charged despite the failure of the key witness to give evidence and the applicant’s subsequent acquittal.

The European Court considered that the judge had relied on suspicions as to the applicant’s innocence after he had been acquitted, which is incompatible with the presumption of innocence (violation of Article 6§2).

Individual measures: It should be noted that there was no complaint about the relevant law or the practice direction in force at the time concerning the granting of defendants’ costs orders. It should also be noted that even though no appeals lies from a Crown Court decision to refuse costs to an acquitted defendant, the European Court found no violation of Article 13.

In respect of pecuniary damage and costs, the applicant claimed the costs of the domestic proceedings, including the abortive appeal proceedings, and the costs of the application to the European Court. The European Court awarded the applicant a sum for costs and expenses for the proceedings before the Court, but did not award costs for the domestic appeal proceedings, as it was clear that no appeal lies from a Crown Court decision to refuse costs to an acquitted defendant. The applicant did not claim non-pecuniary damages.

• Bilateral contacts are under way to determine whether the applicant still suffers any consequences of the violation.

General measures: Dissemination of the judgment of the European Court to the relevant judicial authorities is required. Its publication would be useful.

Decision: The Deputies decided to resume consideration of this case at their 992nd meeting (3-4 April 2007) (DH),  on the basis of information to be provided by the authorities of the respondent state concerning the present situation of the applicant as well as on the publication of the Court’s judgment and its dissemination to the authorities concerned to draw their attention to their obligations under the Convention.

.

*           *           *

60148/00          Singh and others, judgment of 08/06/2006 - Friendly settlement

This case concerns a complaint by the first applicant and the second applicant, (a married couple living in the United Kingdom) and the third applicant, their adoptive son, against refusal by the immigration authorities to grant the son permission to join the family in the United Kingdom, on the ground that adoptions from India were not recognised for the purposes of entry clearance, and that he fell outside the rules for entry, as the motive for his adoption was not liked to the inability of his natural parents to care for him (complaint under Articles 8, 12, 13 and 14).

On 27/08/2004 the third applicant joined his adoptive parents in the United Kingdom.