Ministers’ Deputies

Annotated Agenda

CM/Del/OJ/DH(2007)1013 Section 5 PUBLIC  9 January 2008

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1013th meeting (DH), 3-5 December 2007

- Annotated Agenda[1]

- Decisions

Section 5

Public information version

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SECTION 5 - SUPERVISION OF GENERAL MEASURES ALREADY ANNOUNCED

(See Addendum 5 for part or all these cases)

Action

The Deputies are invited to supervise progress in the adoption of general measures aiming at preventing further similar violations to those found by the Court in the following cases. If necessary, supplementary information on some or all the cases listed below will appear in Addendum 5. The Deputies are invited to resume consideration of these cases in 6 months at the latest.

                       SUB-SECTION 5.1 – LEGISLATIVE AND/OR REGULATORY CHANGES

- 17 cases against Finland

                         - Cases of length of judicial proceedings

48339/99          Kangasluoma, judgment of 20/01/2004, final on 14/06/2004

36288/97          Fryckman, judgment of 10/10/2006, final on 10/01/2007[2]

14724/02          Hagert, judgment of 17/01/2006, final on 17/04/2006

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

26890/95          Kukkola, judgment of 15/11/2005, final on 15/02/2006

34147/96          Lehtinen, judgment of 13/09/2005, final on 13/12/2005

43160/98          Lehtinen Toive, judgment of 22/05/2007, final on 22/08/2007[3]

41585/98          Lehtinen No. 2, judgment of 08/06/2006, final on 08/09/2006

11704/03          Lehtonen, judgment of 13/06/2006, final on 13/09/2006

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

10615/03          Molander, judgment of 07/11/2006, final on 07/02/2007[4]

13102/03          Narinen No. 2, judgment of 06/03/2007, final on 06/06/2007

66899/01          Ruoho, judgment of 13/12/2005, final on 13/03/2006

27744/95          T. and others, judgment of 13/12/2005, final on 13/03/2006

38581/97           T.K. and S.E., judgment of 31/05/2005, final on 31/08/2005

61222/00           Uoti, judgment of 09/01/2007, final on 09/04/2007

63235/00           Vilho Eskelinen and others, judgment of 19/04/2007- Grand Chamber[5]

These cases concern the excessive length of civil and criminal proceedings (violations of Article 6§1).

Several cases also concern the absence of an effective remedy enabling the applicant to complain of the length of the proceedings (violation of Article 13).

Individual measures: Acceleration of proceedings, if still pending (Uoti case and one set of proceedings in the Lehtinen Toive case). The other sets of proceedings are closed.

General measures:

            1) Violation of Article 6: The Finnish authorities have confirmed that the judgments of the European Court have been translated, published on Finlex and widely disseminated with a covering letter to various authorities concerned (for example to the Parliamentary Ombudsman, the Chancellor of Justice, the Supreme Court, the Supreme Administrative Court, the appeal courts and district courts concerned, the Ministry of Justice, the Ministry of the Interior and the National Bureau of Investigation).

• Assessment: Taking into account the direct effect given by the national courts to the judgments of the European Court, these measures seem to be sufficient with a view to executing these judgments.

However, the Ministry of Justice has set up a working group to study measures to reduce the length of judicial proceedings. This working group handed over its report to the Minister of Justice on 14/02/2007. It proposes that proceedings may be shortened inter alia by making the supervision of the overall length of the cases more efficient, by making the provisions on the jurisdiction of the courts more flexible, by creating more varied compositions of chambers and by making courts' internal working methods and direction more efficient.

• Information is awaited on the follow-up given to these proposals.

            2) Violation of Article 13: The Ministry of Justice has set up a working group to study how an effective remedy in cases of excessive length of proceedings can be introduced into the Finnish legal system. The working group delivered its conclusions to the Minister of Justice on 19/01/2007. It proposes that the excessive length of proceedings be compensated by monetary compensation also covering non-pecuniary damages. As a preventive measure, applicants could also make a complaint to a higher court about the length of civil, criminal or administrative proceedings. The conclusions of the working group are now being commented by several authorities and the government's proposal for the draft law will be submitted to Parliament in autumn 2007.

• Information is awaited on the follow-up given to the legislative amendments.

- 1 case against Greece

60457/00          Kosmopoulou, judgment of 05/02/04, final on 05/05/04

The case concerns the violation of the applicant's right to her family life in the context of proceedings concerning her visiting rights in respect of her daughter, a minor (born in January 1988) custody of whom had been granted to the father after the applicant left the matrimonial home. Proceedings began in May 1997 and ended in March 2002.

In particular, the European Court noted that the domestic courts had provisionally suspended the applicant's visiting rights without hearing representations from her, at a time when it was particularly important for the mother to establish regular contact with her daughter who was nine years old at the time. It also noted that the public prosecutor did not act in accordance with a psychiatric report which stressed the need for the child to have contacts with the applicant. This report was provided to the applicant by the authorities three and a half years late while another psychiatric report used in the proceedings was based on examinations of the child and the father but not of the mother (violation of Article 8).

Individual measures: The child has attained the age of majority. It is also noted that she has lived with her father since she was eight, when the applicant left the matrimonial home. She has several times refused to see her mother, who ill-treated her once.

General measures:

• Information provided by the Greek authorities (letter of 22/12/2005):

(a) The provisions of the Code of Civil Procedure (CCP) regarding interim measures (Article 682 et seq.) require that the adverse party concerned by such measures is summonsed. This is a legal obligation, exceptions to which are allowed only in absolutely exceptional cases of imminent danger for the applicant (Article 687);

(b) According to Article 691§2 CCP, a provisional order lays down the measures necessary to preserve the applicant's rights until the delivery of a judicial decision regarding the interim measure requested. The new paragraph 4, added to Article 691 by Law 3327/2005 (in force as from 16/09/2005), provides that if no hearing is fixed within 30 days from the filing of a request for an interim order, the provisional order expires. In labour cases in particular, the parties must be summonsed, at the latest 24 hours before the hearing, to submit their arguments. Thus, the judge may have a global opinion on the parties' arguments before delivering a provisional order;

(c) New draft legislation provides similar measures in cases of provisional orders concerning parents' visiting rights.

• More information on the progress of this draft legislation is awaited as well as a copy of the text and an indicative timetable for its adoption.

(d) Finally, the judgment of the European Court has been forwarded to the competent judicial authorities and translated and published at the site of the State Legal Council (www.nsk.gr).

The Greek authorities have assured the Committee that the practice of all judicial authorities is now in full conformity with the European Court's judgment in this case, which was moreover exceptional.

- 1 case against Malta

26111/02          Mizzi, judgment of 12/01/2006, final on 12/04/2006[6]

The case concerns the dismissal by the Constitutional Court of the applicant's claim introduced in 1997 challenging the legal presumption of his paternity in respect of his wife's daughter born in 1967.

The applicant who had stopped living with his wife before the birth of the child was legally separated from his wife in 1968 and the marriage was annulled in 1972. Until 1990, the applicant was prevented from bringing such a claim since Articles 70 and 73 of the Maltese Civil Code permitted the denial of paternity only in cases of adultery and where the birth had been concealed, which was not the case. After an amendment of Article 70 § 1 (d) in 1990 further evidence, including genetic tests, was admitted, provided the claim would be brought within 3 months after birth (Art. 73). This time-limit was raised to 6 months in 1993. Thus the applicant was barred at the material time from using this remedy.

Despite these legal limitations, the Civil Court in 1997 nonetheless accepted the applicant's request based on DNA tests establishing that he was not the child's father, holding that Maltese law violated Article 8 of the Convention. This judgment was quashed by the Constitutional Court.

The European Court found that the fact that the applicant had no practical possibility of contesting his paternity from the day of the child's birth was a breach of the applicant's right of access to a court (violation of Article 6§1). The Court further found that the respondent state had failed to strike a fair balance between the applicant's legitimate interest of having a judicial ruling over his presumed paternity and the protection of legal certainty and of the interests of the other people involved in his case (violation of Article 8). In addition, this action was subject to a strict time-limit which did not apply to other interested parties (violation of Article 14 in conjunction with Articles 6§1 and 8).

Individual measures:

• Information provided by the Maltese authorities: It seems unlikely that a request for reopening under Article 811 of the Code of Organisation and Civil Procedure, which makes it possible to correct the “wrong application of the law” would succeed. However, legislative reform is already under way to enable the applicant to request new paternity proceedings (see details below).

• Information is required on whether the applicant will be in a position to benefit from the new law once it becomes effective, given the absolute deadline of 31/12/2006 envisaged for such claims. Bilateral contacts are under way to clarify the matter.

General measures: In response to the Secretariat's request for an action plan of 06/07/2006, the respondent state replied within the deadline, providing detailed information on 11/09/2006 on legislative reform under way. On 9/06/2006 a Bill to amend Article 70 of the Maltese Civil Code was published. The new Clause 4 will entitle the applicant as well as other persons in the same position to repudiate a child born before 1/12/1993 within an absolute time limit, namely until the 31/12/2006. The bill is currently being debated.

• Information is awaited on the progress of the law reform, in particular with regard to the current short time-limit envisaged. In this context it should be recalled that the European Court found a violation of Article 14 because other interested parties are not subject to any time-limits and indicated that time limits imposed should meet the requirements of the Convention (§§ 129 -136 of the judgment).

In this context, the experience gained in the very similar case of Shofman against the Russian Federation (1007th meeting, October 2007, Section 4.2) might be taken into account: in that case the Court ruled that a time limit of one year after birth violates Article 8 and noted that the new Family Code in force since 1996 sets no time limit.

All judgments of the European Court against Malta are habitually disseminated among the competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (www. <http://www.bmj.de>mjha.gov.mt/ministry/links.html) which provides for a direct link to the Court's website.

- 1 case against Moldova

61821/00          Ziliberberg, judgment of 01/02/2005, final on 01/05/2005

This case concerns a violation of the applicant's right to a fair trial at a hearing held by the regional court of Chişinău in May 2000 on his appeal against his conviction and administrative fine (the equivalent of 3.17 euros) for participating in an unauthorised demonstration (violation of Article 6§1).

In this respect, the European Court found that the applicant had had no prior notice of the hearing because the regional court had sent him the summons just one day before the hearing, so he had no possibility to organise his defence.

Individual measures: Considering the fact that the fine imposed was very small, that no violation was found of Article 11 and that the applicant had no other negative consequences of the violation, no further individual measure seems to be needed. 

General measures:

• Information submitted by the Moldovan authorities: The Ministry of Justice prepared a draft law modifying the Code of Administrative Offences which was submitted to Parliament. The Parliament adopted it at its first reading on 23/06/2005 but rejected at its second reading on 14/07/2005. It was therefore decided that a new draft Code of Administrative Offences would be prepared. The draft code provides inter alia that a person must be summonsed personally at least 5 days before the date of the hearing. Failure to appear by persons legally summonsed and who cannot validly justify their non- appearance does not prevent cases concerning administrative offences from being decided. The draft code has been submitted to Parliament.

• Further information is awaited on the current state of the ongoing legislative procedure.

The European Court's judgment has been translated and published at the web site of the Ministry of Justice (www.justice.md) as well as in the Official Journal of the Republic of Moldova and it has been disseminated to all relevant authorities.

- 49 cases against Turkey

29865/96           Ünal Tekeli, judgment of 16/11/2004, final on 16/02/2005

The case concerns the domestic courts' refusal in 1995 to allow the applicant to have only her maiden name registered after her marriage. This decision was taken on the grounds of Article 153 of the Turkish Civil Code which obliged married women to bear their husband's name throughout their married life. This provision was amended in 1997 to allow married women to put their maiden name in front of their husband's surname. The new Civil Code, enacted in November 2001, maintained this rule (new Article 187).

The European Court noted, with reference to Committee of Ministers' Resolution (78) 37 on the equality of spouses in civil law and Recommendation R (85) 2 on legal protection against sex discrimination, that the advancement of the equality of the sexes was today a major goal in the member states of the Council of Europe. Given this advancement and the importance of the principle of non-discrimination, the Court noted that states may not impose on married women the tradition of reflecting family unity through the husband's name. Consequently, the Court considered that the obligation on married women, in the name of family unity, to bear their husband's surname - even if they may put their maiden name in front of it - provided no objective and reasonable justification for the gender-based difference in treatment (violation of Article 14 taken in conjunction with Article 8).

Individual measures: Following the judgment of the European Court, the Ministry of the Interior issued an identity card for the applicant under her maiden name.

General measures:

• Information provided by the Turkish authorities (21/06/2005):

- On 11/06/1985, Turkey ratified the UN Convention on the Elimination of All Forms of Discrimination against Women, which became directly applicable in domestic law after the amendment made to Article 90 of the Constitution in May 2004 providing supremacy to Turkey's obligations in the field of human rights over domestic law. States Parties to the Convention are under an obligation to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations, in particular the same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation (Article 16 (g) of the Convention).

- The Ministry of Justice is preparing a draft law which is destined to amend Article 187 of the Civil Code in order to ensure that future violations of the same kind will be avoided. At the 997th meeting (June 2007) the Turkish authorities declared that the preparatory work would be finalised for the adoption of this draft law. However, they did not provide the Committee with a time-table.

- The judgment of the European Court was published on the Bulletin of Ministry of Justice of 17/05/2005, No. 275, p. 39. At the 928th meeting (June 2005) the Turkish authorities also informed the Committee that the judgment had received wide public attention in Turkey and hoped that similar violations would be avoided in the future.

On 11/04/2006 the Turkish authorities informed the Secretariat that the issue of an identity card for the applicant with her maiden name on it constituted a good example of the direct effect given by the executive authorities to the Convention and to the case-law of the European Court notwithstanding the impugned legislation.

• Information is awaited on the progress of the draft law destined to amend Article 187.

                       - Cases of length of judicial proceedings

a. Cases before administrative courts

43647/98          Ormancı and others, judgment of 21/12/2004, final on 21/03/2005

69037/01          Araç, judgment of 21/09/2006, final on 21/12/2006

29600/02          Çakmak, judgment of 12/04/2007, final on 12/07/2007[7]

31132/96          Döleneken, judgment of 06/12/2005, final on 06/03/2006

42778/98          Güven Hatun and others, judgment of 08/02/2005, final on 08/05/2005

50906/99          Güven Meryem and others, judgment of 22/02/2005, final on 22/05/2005

49275/99          Karakullukçu, judgment of 22/11/2005, final on 22/02/2006, rectified on 15/03/2006

4520/02            Kartal Hayrettin, judgment of 20/10/2005, final on 12/04/2006

39327/02          Mete, judgment of 25/10/2005, final on 25/01/2006

50913/99          Özel Mehmet and others, judgment of 26/04/2005, final on 26/07/2005

50733/99          Özkan Nuri, judgment of 09/11/2004, final on 30/03/2005

41665/02          Rodoplu, judgment of 23/01/2007, final on 23/04/2007

36110/97          Yalman and others, judgment of 03/06/2004, final on 03/09/2004

42091/02          Yengin, judgment of 20/02/2007, final on 20/05/2007

62838/00          Yiğit İsmail, judgment of 25/10/2005, final on 12/04/2006

These cases concern the excessive length of compensation proceedings before administrative courts.

Some of these cases particularly concern the loss sustained as a result of the death of applicants' relatives during clashes involving the security forces (violations of Article 6§1).

Individual measures: No proceedings pending, except in the cases of Yiğit and Yengin.

• Information is awaited on the acceleration of the proceedings if they are still pending.

General measures: In reply to the Secretariat's initial-phase letter of 02/06/2005 the Turkish authorities gave information on 18/07/2005, 01/08/2005 and 29/09/2005 on measures envisaged to prevent lengthy proceedings before administrative courts.

- A new Code of Administrative Procedure is being drafted with a view to decreasing the workload of administrative courts. It also lays down procedures for resolving disputes before the trial stage and for friendly settlements and envisages a number of amendments with the aim of reducing the length of proceedings before administrative courts. These amendments were submitted to the office of the Prime Minister on 23/05/2005.

- Preparations are under way for the adoption of a draft law on the establishment of the Council of Scrutiny of Public Works, which will provide that all disputes between the administration and citizens will first be examined by an Ombudsman before being brought before the administrative authorities or the administrative courts.

- The Law on the Council of State (Law No: 2575) was amended by Law No. 5183 of 02/06/2004 whereby a new Chamber (the 13th Chamber) was established and the functions and jurisdictions of the other Chambers were revised with the aim of reducing the length of proceedings before the Council of State.

- The judgment in the case of Ormancı and others was published in the Bulletin of the Ministry of Justice (No.74).

• Information is awaited on the adoption of these draft laws as well as their texts.

b. Cases before civil courts

26136/95          M.Ö, judgment of 19/05/2005, final on 19/08/2005

74463/01          Bahçeyaka, judgment of 13/07/2006, final on 13/10/2006

60176/00          Çolak Ebru and Çolak Tayfun Engin, judgment of 30/05/2006, final on 30/08/2006

50165/99          Doğan Ali Rıza, judgment of 22/12/2005, final on 22/03/2006

52517/99          Günter, judgment of 22/02/2005, final on 22/05/2005

38424/97          Molin İnşaat, judgment of 11/01/2005, final on 06/06/2005

61914/00          Nalbant, judgment of 10/08/2006, final on 10/11/2006

74039/01          Öztunç, judgment of 27/03/2007, final on 27/06/2007[8]

54673/00          Öztürk Latif Fuat and others, judgment of 02/02/2006, final on 02/05/2006

26518/95          Sekin Mahmut and others, judgment of 22/01/04, final on 22/04/04

15614/02          Tamar Mehmet, judgment of 18/07/2006, final on 18/10/2006

33379/02          Tosun Ezel, judgment of 10/01/2006, final on 10/04/2006

58922/00          Türkoğlu, judgment of 08/08/2006, final on 08/11/2006

12974/03          Türküler and others, judgment of 03/05/2007, final on 03/08/2007[9]

48264/99          Ünal Vehbi, judgment of 09/11/2006, final on 09/02/2007[10]

48057/99          Yorgiyadis, judgment of 19/10/2004, final on 30/03/2005

These cases concern the excessive length of civil proceedings (violations of Article 6§1). The case of Çolak also concerns a violation of the applicants' right to respect for their private life due to the courts' inability to decide the paternity question promptly or to oblige the alleged father to take a DNA test (violation of Article 8).

Lastly, the cases of Bahçekaya, Çolak and Tamar concern the absence of any remedy in Turkish law by which the applicants might have complained of the length of proceedings (violation of Article 13).

Individual measures: No proceedings pending, except in the case of Tosun where the proceedings have been pending for over 32 years.

• Information is awaited on the acceleration of the proceedings if they are still pending.

General measures: In reply to the Secretariat's initial-phase letter of 02/06/2005 the Turkish authorities submitted the following information on 15/09/2005:

- According to the statistics provided by the Ministry of Justice, the average length of civil proceedings in Turkey is 177 days before first-instance courts and 86 days before the Civil Chambers of the Court of Cassation.

- The competence and jurisdiction of Civil and Criminal Courts of First Instance were reorganised and Regional Courts were established with the coming into force of Law No. 5235 of 26/09/2004.

- A number of new courts have recently been established in Turkey, namely 823 Civil Peace Courts, 960 Civil Courts of First Instance, 704 Cadastral Courts, 174 Enforcement Courts, 98 Labour Courts, 149 Family Courts, 54 Commercial Courts, 20 Consumer Rights Courts, 4 Intellectual Property Rights Courts, 19 Juvenile Courts and 1 Maritime Court.

- A new Law amending the Code of Civil Procedure is being drafted in order to prevent lengthy proceedings before civil courts.

• Information is awaited on the adoption of this draft law as well as on publication and dissemination of the judgment of the European Court, in particular to family courts and the Court of Cassation.

c. Case before labour courts

54672/00           Ertürk Hüseyin, judgment of 22/09/2005, final on 22/12/2005

This case concerns the excessive length of proceedings concerning civil rights and obligations before the Istanbul Labour Law Court (the proceedings began in January 1994 and ended in June 1999) (violation of Article 6§1).

Individual measures: None (no proceedings pending).

General measures:

• Information is awaited on measures envisaged or taken to prevent lengthy proceedings before labour law courts.

In this context, the Secretariat wrote to the Turkish authorities on 03/04/2006 requesting information. No information has been received so far. 

d. Cases before criminal courts

58539/00          Akay, judgment of 24/10/2006, final on 24/01/2007

39977/98          Atkın Mehmet, judgment of 21/02/2006, final on 21/05/2006

74939/01          Dağ, judgment of 08/08/2006, final on 08/11/2006

71342/01          Erin, judgment of 10/08/2006, final on 10/11/2006

5400/02            Eser, judgment of 25/10/2005, final on 25/01/2006

29871/96          İletmiş, judgment of 06/12/2005, final on 06/03/2006

74798/01          Karakaş and Bayır, judgment of 11/04/2006, final on 11/07/2006

33620/02          Oruç, judgment of 21/12/2006, final on 21/03/2007

43379/02          Selek, judgment of 12/12/2006, final on 12/03/2007

9613/03            Vurankaya, judgment of 10/05/2007, final on 10/08/2007[11]

32907/03          Yıldız, judgment of 10/04/2007, final on 10/07/2007[12]

These cases concern excessive length of proceedings before criminal courts (violations of Article 6§1). The case İletmiş also concerns the unjustified interference with the applicant’s right to respect for his private and family life as a result of the confiscation of his passport while the lengthy criminal proceedings were pending against him (violation of Article 8).

Individual measures: No proceedings are pending, except in the case of Yıldız.

• Information is awaited on the acceleration of the proceedings if they are still pending.

General measures: Information is awaited on measures envisaged or taken to prevent lengthy proceedings before criminal courts. For the measures taken in the case of İletmis concerning the violation of Article 8 of the Convention, see the Annotated Agenda at the 98nd meeting (December 2006, section 4.2).

e. Case before commercial and consumers’ courts

33158/03          Kadriye Sülün, judgment of 06/02/2007, final on 09/07/2007[13]

38891/03          Tüketici Bilincini Geliştirme Derneği, judgment of 27/02/2007, final on 27/05/2007

Individual measures: None (no proceedings pending).

General measures:

• Information is awaited on measures envisaged or taken to prevent lengthy proceedings before commercial and consumers’ courts. 

f. Cases before cadastre courts

51963/99          Namlı and others, judgment of 05/12/2006, final on 23/05/2007

11841/02          Özden, judgment of 03/05/2007, final on 03/08/2007[14]

31487/02          Özden No. 2, judgment of 03/05/2007, final on 03/08/2007[15]

Individual measures: None (no proceedings pending).

General measures:

• Information is awaited on measures envisaged or taken to prevent lengthy proceedings before cadastre courts. 

In the context of all the above cases, the attention of the authorities is drawn to the fact that Turkish law still provides no effective remedy in respect of excessive length of proceedings. Measures in this respect could be envisaged. It should be noted that in the case of Bahçekaya the European Court observed that “the Turkish legal system does not provide any remedy to accelerate the proceedings or to provide litigants with adequate redress for the delays that have already occurred.

In the present case, the applicant did not have personal rights to compel any other authority to exercise its supervisory jurisdiction over the trial court to expedite the proceedings”.

- 2 cases against Ukraine

67531/01          Gorshkov, judgment of 08/11/2005, final on 08/02/2006

The case concerns the fact that the applicant was prevented from contesting the lawfulness of his ongoing psychiatric detention, such appeal being open only to doctors or to the psychiatric institution concerned (violation of Article 5§4).

Individual measures: The applicant was released from the hospital on 08/11/2001, almost two years after his health had improved.

General measures: While the Court noted that the Psychiatric Medical Assistance Act and the Code of Criminal Procedure provided several safeguards (regular examination of the detainee by a commission of psychiatrists and courts at least every 6 months, the possibility for the medial director of the institution to apply to a court, etc), it however found that their existence did not eliminate the need for an independent right of individual application by the patient (§45 of the judgment). It therefore appears appropriate to introduce legislation to this effect.

• Information provided by the Ukrainian authorities (letter of 23/01/2007): The following measures have been undertaken:

            1) Legislative reform: The Government of Ukraine has drawn up a draft law “on Amendments to Certain Legislative Acts of Ukraine on Change or Cancellation of Forced Medical Treatment”. This draft law gives those subject to compulsory medical treatment a right to initiate reconsideration of the legality of the measures applied, or their cancellation. The authorities informed the Committee of Ministers on 01/11/2007 that this law is in the final stage of drafting and that it will be submitted to the government for consideration.

Information is awaited on the progress with this draft law, including a timetable for its adoption; a copy of the text would also be helpful.

            2) Translation, publication and dissemination of the judgment of the European Court: It has been translated into Ukrainian and placed on the Ministry of Justice’s official website. It was published in the Official Herald of Ukraine, No. 45 (2006). By letter of 21/11/2006, the attention of the Supreme Court of Ukraine and the Office of the Prosecutor General was drawn to the European Court’s conclusions.

29458/04+         Sokurenko and Strygun, judgment of 20/07/2006, final on 11/12/2006

The case concerns the violation of the applicants' right to a fair hearing before the Supreme Court in proceedings concerning a commercial matter. In 2004, after having quashed a judgment by the Higher Commercial Court, the Supreme Court upheld a judicial decision delivered by the court of appeal in 2003 even though this course of action was not provided in the Code of Commercial Procedure or other regulations.

The European Court found that having overstepped the limits of its jurisdiction, which were clearly laid down in the Code of Commercial Procedure, the Supreme Court could not be considered a “tribunal established by law” (violation of Article 6§1).

Individual measures: According to the amended Code of Civil Procedure, a case may be reopened and re‑examined on the ground of “exceptional circumstances”, inter alia, decisions of “international bodies whose jurisdiction was accepted by Ukraine” establishing violation of international obligations of Ukraine in relation to the case at issue (Article 347-2). It is thus open to the applicants under Ukrainian law to request a fresh examination of the case.

By letter dated 28/12/2006, the Government of Ukraine informed the applicants about the possibility, provided by the legislation in force, to apply for the review of the decision at issue under exceptional circumstances. According to information available, the applicants have not lodged such an application.

Finally, it is noted that the Court awarded to both applicants just satisfaction in respect of non-pecuniary damage sustained.

General measures:

• Information provided by the Ukrainian authorities (letters of 23/01/2007 26/04/2007 and 01/11/2007):

            1) Legislative changes: An amendment to the Code of Commercial Procedure was approved by Parliament at first reading (registration number 2566 of 16/11/2006). The draft law is aimed at reforming the existing procedure for review of High Commercial Court judgments by the Supreme Court of Ukraine (the so-called “double cassation”) and introduces procedure for review of judgments under exceptional circumstances. The draft provides no power of the Supreme Court to review judgments of the High Commercial Court of Ukraine, except review under exceptional circumstances.

• Information is awaited on progress in drafting amendments to the Code of Commercial Procedure, a copy of which is also requested.

            2) Translation, publication and dissemination: The judgment has been translated into Ukrainian and placed on the Ministry of Justice's official website. It was published in the Official Herald of Ukraine, No. 1 of 19/01/2007. A summary was published in the Government's Currier No. 6 of 13/01/2007.

The Government Agent before the European Court held a meeting with judges of the Supreme Court of Ukraine devoted to this case and in particular to the measures needed to amend the relevant legislation to avoid similar violations in the future. The Government Agent has also drawn attention to this judgment in the course of a number of seminars and training sessions for judges.

                       SUB-SECTION 5.2 – CHANGES OF COURTS’ CASE-LAW OR OF ADMINISTRATIVE PRACTICE

- 2 cases against Italy

36822/02          Bracci, judgment of 13/10/2005, final on 15/02/2006

62094/00           Majadallah, judgment of 19/10/2006, final on 26/03/2007[16]

These cases both concern the unfairness of certain criminal proceedings which resulted in the applicants’ conviction on the basis of testimony given at the investigatory stage by witnesses whom the applicants were unable to examine or to have questioned, in breach of their right to a fair trial (violations of Article 6§§1 and 3d).

In the Bracci case, the proceedings, which concerned a number of offences (robbery, sexual abuse, illegal possession of a weapon) against several victims, resulted on 5/12/2000 in the applicant's conviction and sentence to six years' imprisonment. The European Court noted that the part of the conviction based solely on the testimony given before the trial by the victim who then disappeared, had hampered the rights of the defence in a manner incompatible with the guarantees of the Convention

In the Majadallah case, the applicant was convicted on 22/01/1998 of sexual assault, public obscenity, bodily harm and drunkenness and sentenced to a year and four months’ imprisonment, without having had the possibility of examining his accusers, who did not attend the proceedings.

Individual measures: In both cases the European court found that the finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicants.

            1) Bracci case: The applicant appealed to the Rome Tribunal, in respect of its competence to supervise the enforcement of sentences, maintaining that his sentence was illegal on account of the violation found by the European Court. The Tribunal admitted his appeal on 25/09/2006 and ruled his conviction illegal. The applicant was thus dispensed of this sentence, but remained in custody on account of other convictions.

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

            2) Majadallah case: The applicant appealed first before the Florence Appeal Court and subsequently to the Court of Cassation, but his conviction was upheld.

In the Bracci case, the Tribunal noted that Italy, unlike other European countries, has as yet no mechanism for reopening proceedings following a judgment by the European Court and underlined the need to introduce such a mechanism into Italian law to give effect to the Convention as interpreted by the European Court. Whilst confirming the direct effect of the Convention but noting the impossibility of reopening by jurisprudential means, the Rome Tribunal decided to establish the unlawfulness of the applicant's imprisonment by declaring his conviction to be unenforceable.

It is now for the appropriate Italian authorities to draw all the consequences arising in Italian law from this finding, both in the present, specific case and more generally.

Italian law still does not authorise reopening of proceedings following the finding of a violation of the Convention, but in the first place, the Court of Cassation has been seised of the matter (by the Bologna Appeal Court in the Dorigo case) and secondly, on 18/09/2007 the government submitted a new draft law to introduce such reopening into the Italian judicial system (AS 1797 – Senate) in respect of violations of Article 6§3.

General measures: The European Court has stated that, where a conviction is founded solely or to a significant degree on the testimony of a witness whom the defendant cannot cross-examine or have cross-examined, be it at the investigative or the trial stage, defence rights are restricted in a manner incompatible with the guarantees provided by Article 6 (§55). Article 512 of the Italian Code of Criminal Procedure still provides the possibility of convicting on the basis of testimony which the defendant cannot test, but only under circumstances where, due to unforeseeable circumstances, it is impossible to reproduce the testimony in question. The Court of Cassation, recently seised on the subject, specified that, in order to satisfy the principle of adversarial proceedings provided by Article 111 of the Constitution, evidence is not admissible if the witness has deliberately decided not to submit to the examination of the parties to the proceedings (No. 23571 of 20/06/2006).

Although both these cases raise the same question a change of law does not seem strictly necessary in principle, provided that the existing law is applied in conformity with the principles flowing from the European Court's case-law. Thus to this end the publication of the European Court's judgment is necessary, as well as broad dissemination to courts, together with any other measure likely to ensure that the case-law of Italian Courts is aligned with the requirements of the Convention.

• Information on this is awaited. As the Court of Cassation is organising the publication of the European Court’s case-law on its website, it would be helpful to know whether the judgments in these cases will be translated in full into Italian and published in this context.

- 2 cases against Hungary

30103/02           Maglódi, judgment of 09/11/2004, final on 09/02/2005

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

These cases concern the excessive length of the applicant's pre-trial detention between 1999 and 2005 in view of the lack of sufficient reasons to justify it (violations of Article 5§3).

In the first case, the European Court noted in particular that between 10/04/2000 and 11/06/2003 there was no specific evidence to support the persistence of the risk that the applicant might abscond, on which the domestic courts based their decisions. In the second case, the Court noted 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:

            1) Maglódi case: The applicant was still detained when the European Court delivered its judgment. The Hungarian authorities have provided a copy of the most recent decision relating to the prolongation of the applicant's detention (of 17/05/2005). It was noted with concern that the applicant was still detained on the same grounds as those criticised by the European Court. This observation also raised questions on the effectiveness of the reform of pre-trial detention introduced in 2003 (see below), as well as on the development of the direct effect granted by the national courts to the Convention and the case-law of the European Court.

Information was therefore requested on the measures envisaged or already taken to remedy the applicant's situation and to encourage the direct effect of Convention at national level.

The authorities have indicated that in their opinion the applicant was no longer detained on the same grounds as those criticised by the European Court. They mention the fact that in its decision of 17/05/2005 the competent court referred not only to the risk of absconding but also to the fact that in the meantime the applicant had been charged with a further homicide, so that if he is indicted formally for this second homicide, the proceedings in both cases will be joined and he will be charged with multiple homicides. On 04/05/2006 the Secretariat wrote to the Hungarian authorities on this question.

On 07/12/2005, the first-instance court convicted the applicant of murder and sentenced him to life imprisonment.

• Assessment: In these circumstances, it appears that the applicant no longer suffers from the consequences of the violation found in this case, as detention following a conviction at first instance no longer falls under Article 5§3 of the Convention.

            2) Csáky case: 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 him 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:

            1) Measures taken in the Imre case: The cases present similarities to that of Imre (judgment of 02/12/2003, Section 6.2). In this case the Hungarian delegation indicated that according to the new Code of Criminal Procedure, which entered into force on 01/07/2003, domestic courts are obliged to evaluate more attentively the facts on which decisions to prolong pre-trial detention are based. The authorities are also under the obligation to give detailed reasoning for their decisions. Moreover, under the terms of the new Code of Criminal Procedure the risk that an accused might abscond may no longer be deduced from the gravity of the offence (Article 129§(2)b). The new Code also set up a procedure for release on bail which constitutes an effective alternative to ensure the presence of a defendant and could contribute to the reduction in cases of prolonged pre-trial detention (Article 147§(1)). In addition, the delegation indicated that according to the established practice of Hungarian courts the risk that a defendant might abscond must be established on the basis of concrete evidence and not presumption.

            2) Training of judges following the Maglódi case: In response to the questions raised concerning individual measures (see above), the authorities referred to the training of judges which took place following the Maglódi case. They indicated in this respect that this judgment was discussed at the annual meeting of the heads of criminal divisions in regional courts, courts of appeal and the Supreme Court, which took place on 27/10/2005. The attention of the heads of criminal divisions has been drawn in particular to the application of the Convention by domestic courts, and also to issues concerning criminal proceedings, such as the excessive length of detention pending trial and the grounds for such detention.

• Further information furnished by the Hungarian authorities: Section 5, paragraph 2 of the Code of Criminal Procedure (CCP) entered into force on 01/05/2006. It provides that everyone has the right to defend himself at liberty and that this right may only be restricted for reasons and in compliance with the procedure set out therein. As a result of this conceptual shift, pre-trial detention may only be ordered on the grounds specifiedunder section 129§2 of the new CCP, paying due regard to the principle of proportionality and as a last resort.

During further training, judges' attention is drawn to these requirements, and judges observe them when drafting the reasons for their judgments (for example, the Budapest Regional Court specified in an order for pre-trial detention the circumstances upon which it based its decision (Order No. 22.Bnf.1431/2005/2)).

            3) Publication: The European Court's judgment in Csáky is available on the website of the Ministry of Justice and Law Enforcement. The European Court's judgment in the Imre case has been published on the website of the Ministry of Justice and Law Enforcement and in Acta Humana No. 1 of 2004.

• Information awaited: more examples showing that domestic case-law effectively takes into account the judgments of the European Court in this area would be useful in order to confirm the efficiency of the measures already adopted and their impact on domestic courts' practice.

Furthermore, in view of the particularities of the Csáky case, the Hungarian authorities have been invited to send the judgment of the European Court out to the competent courts.

- 1 case against Malta

77562/01          San Leonard Band Club, judgment of 29/07/2004, final on 29/10/2004

The case concerns an appellate court's re-examination of one of its own decisions, pursuant to section 811 (e) of the Code of Organisation and Civil Procedure (COCP), in the context of an appeal on a point of law.

The European Court found that to require the judges on the merits to determine whether or not they had correctly applied the law could justify the applicant's fears concerning the court's impartiality (violation of Article 6§1).

Individual measures: The European Court indicated that in cases of violation of the right to a fair trial before an independent and impartial tribunal, the most appropriate measure in principle is reopening before an independent and impartial tribunal (§70 of the judgment). The Secretariat has been informed that the applicant's request for a retrial was heard by a panel of three judges, who decided not to grant him a new trial on the merits. Written confirmation of this information, including the text of the judicial decision, is awaited.

General measures: All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (http://www.bmj.de>mjha.gov.mt/ministry/links.html) which provides a direct link to the European Court's website.

In order to prevent judges seised of similar appeals from being required to determine whether their own application of the law had been adequate and sufficient (sections 811 (e) and 814 COCP), the lower courts have been instructed to re-hear such applications with different judges.

• Written confirmation of this information is awaited.

                       SUB-SECTION 5.3 – PUBLICATION / DISSEMINATION

- 1 case against Andorra

69498/01          Pla and Puncernau, judgment of 13/07/2004, final on 15/12/2004 and of 10/10/2004 (Article 41) - Friendly settlement[17]

The case concerns interpretation of a testamentary disposition and a right of an adopted son to inherit an estate from his grandmother under the will made by the latter.

The European Court found that when a child is adopted under a full adoption procedure the child is in the same legal position as a biological child of his or her parents in all respects, including property rights. Any interpretation of a will should endeavour to ascertain the testator's intention without overlooking the importance of interpreting the testamentary disposition in a manner corresponding closely to domestic law and to the Convention. The European Court found that, in this case, the applicant had been discriminated against when the High Court of Justice of Andorra had interpreted the testamentary disposition of the grandmother's will in way to include only the biological sons (violation of Article 14 read in conjunction with Article 8 of the Convention).  

Individual measures: The Andorran Government has reached a friendly settlement with both the applicants compensating for the pecuniary and non-pecuniary damages they suffered.

• Assessment: No further individual measure seems to be needed.

General measures: The issue causing the violation in this case was the interpretation of a testamentary disposition. Therefore no general measures changing the existent legislation or case law seem to be needed. However, in this context the publication and dissemination of the judgment of the European Court to various authorities concerned (for example in a circular letter) seems useful.

Information is awaited: on the publication and dissemination of the European Court's judgment.

- 8 cases against Bulgaria

40476/98           Yanakiev, judgment of 10/08/2006, final on 10/11/2006

This case concerns the infringement of the applicant’s right of access to a court to obtain a decision on the tacit refusal of the mayor of Varna to approve the purchase by the applicant of a flat belonging to a State enterprise (violation of Article 6§1).

The European Court noted that the Supreme Administrative Court rejected in 1997 the applicant’s appeal against the mayor’s refusal, on the ground that such decisions could not be subjected to a judicial review, since they concerned the discretionary power of the administration. However, neither of the two panels of the Supreme Administrative Court touched upon the substance of the applicant’s claim that he had a specific right to acquire the flat by virtue of the additional provisions of the Housing Act of 1991, in which case the administration allegedly did not have discretion and could not refuse the purchase. Since those provisions had a decisive impact for the outcome of his case, the European Court found that the applicant was owed a specific and express reply.

Individual measures: in the Court’s view, the most appropriate form of redress in cases where it finds that an applicant has not had access to a tribunal in breach of Article 6§1 of the Convention would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial. The Court also noted in this connection that Article 231§1 (h) of the Code of Civil Procedure allows the reopening of administrative proceedings if the European Court has found a violation of the Convention or its Protocols (§90 of the judgment).

General measures: the judgment of the European Court was published on the website of the Ministry of Justice www.mjeli.government.bg.

Having regard to the violation found in this case, the dissemination of the judgment of the European Court, if appropriate with a circular, to the competent administrative courts in order to draw their attention to their obligations under the Convention, would be sufficient measures for execution. 

• Information is expected in this respect.

39271/98          Kuibishev, judgment of 30/09/2004, final on 30/12/2004

68177/01          Yambolov, judgment of 12/04/2007, final on 12/07/2007[18]

These cases concern the excessive length of the applicants’ detention pending trial, from September 1996 to June 1998 and April 1999 and February 2002, respectively, considering the authorities’ inattention to their duty to keep it as short as possible (violations of Article 5§3).

The Kuibishev case also concerns a violation of the applicant’s right to be brought before a judge promptly after his arrest (violation of Article 5§3). It also relates to the lack of effective judicial review of the lawfulness of the applicant’s detention pending trial and the non-adversarial nature of the proceedings before the Supreme Court in respect of Mr Kuibishev’s requests for release (violation of Article 5§4).

Individual measures: None: the applicants are no longer detained pending trial, as they were sentenced to terms of imprisonment in 1998 and in 2002 respectively.

General measures:

            1) Violation of Article 5§3 (right to be brought before a judge) and of Article 5§4 (lack of effective judicial review of the lawfulness of the detention): the case presents similarities to the cases 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 the detention pending trial): in view of the development of the direct effect given by Bulgarian courts to the Convention and to the Court's case-law, a circular to the authorities competent for pre-trial detention, drawing their attention to the requirement for “special diligence” which is essential when a person is maintained in detention pending trial, would be a relevant measure.

• Information awaited: the confirmation of this dissemination is expected.

            3) Violation of Article 5§4 (non-adversarial nature of proceedings before the Supreme Court: the case presents similarities to that of Ilijkov (judment of 26/07/2001) in Section 6.2, following the enactment in 2003 of a legislative reform of appeals against pre-trial detention.

31365/96          Varbanov, judgment of 05/10/00

56272/00          Kayadjieva, judgment of 28/09/2006, final on 28/12/2006

39269/98          Kepenerov, judgment of 31/07/03, final on 03/12/03

40061/98          M.S., judgment of 04/07/02 - Friendly settlement

These cases concern the applicants' detention in a psychiatric clinic between 1995 and 2000 in order to undergo a medical examination at the behest of a prosecutor in the framework of proceedings concerning psychiatric confinement. The European Court found that such detention had no legal basis in national law as the prosecutor had no power to issue such an order and had not sought a prior medical assessment of the need for the applicant's detention (violations of or complaint under Article 5§1).

The Varbanov and Kayadjeva cases also concern the fact that the applicants had no opportunity to bring judicial proceedings to challenge the lawfulness of their detention (violation of Article 5§4).

Individual measures: None: the applicants' detention lasted between one day and one month and they were released between 1995 and 2000.

General measures:

• Measures adopted: On 29/07/2004 the Parliament adopted the new Health Act. The act was published in the Official Journal, No.70 of 10/08/2004, and entered into force on 01/01/2005. According to its provisions, public prosecutors may still propose the confinement of a person in a psychiatric clinic to a court (Section 157). On the other hand, the new law does not contain provision relating to an obligation or a power for public prosecutors to undertake a prior inquiry or to order a psychiatric examination or other medical examination. It provides that the court examining the case orders such an examination after having heard the interested party and having sought the opinion of a psychiatrist on the mental health of this person (Section.159). This decision is subject to appeal and may be enforced, if necessary, with the cooperation of the police (Section165).

The new pieces of delegated legislation adopted in this field in 2005 also provide that a medical examination for the purposes of possible psychiatric confinement is ordered by the court (Article 4 of the regulation of medical examinations ordered in the framework of proceedings concerning psychiatric confinement).

The Varbanov judgment was communicated to the Ministry of Health and to the Congress of Bulgarian Psychiatrists in November 2000 and was published (in Bulgarian translation) on the Internet site of the Ministry of Justice www.mjeli.government.bg

• Information awaited: in order to avoid the development of practices contrary to the new legislative framework in the future, the authorities might consider sending the Kepenerov judgment out to competent prosecutors so as to draw their attention to the requirements of the Convention in this field.

44624/98          Prikyan and Angelova, judgment of 16/02/2006, final on 16/05/2006

The case relates to the lack of adversarial proceedings before the Supreme Court of Cassation concerning an action brought by the applicants in 1994 to recover possession of a flat (violation of Article 6§1). The applicants were deprived of an opportunity to submit their arguments on a matter that was decisive for the outcome of the proceedings, as the Supreme Court, sitting as final instance, determined that the period for adverse possession had lapsed in favour of the applicants’ opponents, without submitting this issue for discussion. 

Individual measures: The applicants may ask for the reopening of the proceedings on basis of the special provision of Article 231§1, letter “z” of the Code of Civil Procedure.

General measures:

• Present situation: The relevant procedural rules have been modified in 1998, subsequent to the facts in this case. At present, in cassation proceedings only observations raised by the parties are examined (Art. 218 letter “j” of the Code of Civil Procedure). Moreover, the European Court noted that at the material time the rules of procedure (which are still to force) authorised the Supreme Court of Cassation to reopen proceedings, to enable parties to submit and discuss observations raised ex officio (§§26 and 51 of the judgment). Finally, it should be noted that the procedural rules concerning the examination of a civil case at first instance and appeal sufficiently guarantee respect of the parties’ right to examine and discuss all elements and observations submitted during proceedings.

• Evaluation: In these circumstances, the publication and dissemination of the European Court’s judgment to the relevant civil 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.

The judgment was published (in Bulgarian translation) on the Internet site of the Ministry of Justice www.mjeli.government.bg

• Information awaited: On the dissemination of the judgment.

- 1 case against Finland

36065/97           H.K., judgment of 26/09/2006, final on 26/12/2006

This case concerns the taking into care of the applicant's daughter in 1995, on suspicion that he had sexually abused her. On 08/02/1995 an emergency care order was issued officially placing the child in her mother's care. The order was considered necessary in order to conduct examinations in the light of the allegations of sexual abuse. Subsequently, three care plans were drawn up in October 1995 and March and April 1998, which had the effect of further restricting the applicant's access rights, although no formal decision had been made. In April 1996 the applicant was reported to the police and he was subsequently charged with, among other things, having sexually abused his daughter. In August 1999 he was finally acquitted of all charges against him.

The European Court observed that between 03 and 07/02/1995 the applicant's daughter was placed in emergency care in the absence of any formal decision by the social welfare authorities as required by the Child Welfare Act (violation of Article 8). Concerning the access restrictions issued in March and October 1995, and March and April 1998, the European Court considered that the applicant should have been given an opportunity to contest those access restrictions (violation of Article 8).

Individual measures: The applicant's daughter subsequently returned to live with him. The European Court awarded him just satisfaction in respect of the non-pecuniary damage suffered.

• Assessment: no further individual measure seems to be needed.

General measures: This case presents similarities to that of K. and T. against Finland case (judgment of 12/07/2001, Grand Chamber, closed by final resolution ResDH(2006)50) where measures were taken in relation to the placing of children in public care and in respect of the effective remedy. In addition to the measures taken in this context, the publication and dissemination of the Court's judgment would seem appropriate.

The judgment of the European Court has been translated and published in the Finlex database.

• Confirmation of the dissemination of the judgment to the relevant authorities is awaited.

- 11 cases against France

57752/00          Matheron, judgment of 29/03/2005, final on 29/06/2005[19]

This case concerns the fact that, in proceedings against him for narcotics offences, the applicant could not contest the inclusion of certain transcribed telephone conversations in his case-file. These transcripts were obtained through telephone tapping, the lawfulness of which he could not contest as it was conducted in the context of other proceedings to which he was not party (violation of Article 8).

The European Court took no position on the question as to whether or not this interference was “in accordance with the law”, but nonetheless noted that a situation in which people are subjected to tapping for the purposes of proceedings to which they are not party would not seem to be covered by law inasmuch as the law makes no distinction as to the proceedings for which tapping is authorised. On the other hand the European Court found that the applicant had not had the benefit of “effective supervision” of the interference, nor had he been effectively protected by the law on account of the case-law of the Cour de cassation as applied in this case. Following the proceedings at issue, the applicant was sentenced to 15 years’ imprisonment.

Individual measures: On the basis of Article L626-1 of the Code of Criminal Procedure, the applicant had the possibility to ask for his case to be re-examined. He does not appear to have used it.

• Assessment: No individual measure other than the re-examination of the case seems necessary and therefore the examination of individual measures may be considered complete.

General measures:

• Information is awaited regarding a possible change in the case-law of the Cour de cassation, or any other measure which might be envisaged, such as a circular to the authorities and judges competent for telephone tapping and to judges competent to determine the lawfulness of such surveillance, setting out the modalities of control of telephone tapping.

• General information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

77773/01           Flandin, judgment of 28/11/2006, final on 28/02/2007

This case concerns the unfairness of criminal proceedings against the applicant, in that his right to free legal assistance by a court-appointed lawyer was not respected and, thus, he has not had adequate facilities for the preparation of his defence (violation of Article 6, paragraphs 1 and 3 b) and c)). He had been granted legal assistance, and counsel designated, by a decision of 21/03/2000, but this decision was not notified to him until more than three weeks after the hearing before the court of appeal which substantially increased the fine imposed on the applicant. The Court of Cassation did nothing to remedy the violation, rejecting the applicant’s appeal on points on law on the ground that as he had been able to defend himself in person at the hearing at issue, he had renounced assistance by counsel; on this point the European Court noted, to the contrary that the applicant had constantly expressed the wish to be defended by counsel before the court of appeal.

Individual measures: The applicant may request the re-examination of his conviction under Articles L 626-1 ff. of the Code of Criminal Procedure. He made no application to the European Court for just satisfaction.

• Assessment: no other measure appears necessary.

General measures: The shortcoming at the origin of the violation is the long period of time taken by the Legal Aid Office to communicate the decision granting legal aid to the applicant and to his lawyer, and the Court of Cassation failed to rectify this.

• The dissemination of this judgment to the Legal Aid Offices and to the Court of cassation seems necessary.

• General information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

66053/01          Simon, judgment of 08/06/2004, final on 08/09/2004

This case concerns the excessive length of certain proceedings concerning civil rights and obligations before administrative courts (violation of Article 6§1). The proceedings began in 1996 and are closed. They lasted more than 4 years and 7 months, for 3 degrees of jurisdiction.

The European Court said that, in view of what was at stake for the applicant (dispute relating to the applicant’s means of subsistence) the authorities should have acted with “particular promptness”.

Individual measures: None (proceedings are closed).

General measures: This case presents similarities to other cases of length of proceedings before administrative courts, closed by Final 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 for 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.

• Having regard to the “particular promptness” required according to the European Court, confirmation is awaited that the judgment of the European Court has been sent out to the competent authorities, so that they may directly apply the Convention as interpreted by the Court in this judgment. It is recalled that the Convention and the case-law of the European Court have direct effect in France.

• General information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

Finally, it should be 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. However, applicants whose applications had been lodged before 01/01/2003 (as in these cases) could not be expected to have exhausted this remedy. A change is nonetheless to be noted in this respect: since 01/09/2005, this remedy falls under the exclusive jurisdiction of the Conseil Etat; thus applications lodged on this basis will be settled promptly, avoiding any excessive length of proceedings to engage the state's responsibility (see the Richard-Dubarry case mentioned above).

37876/02           Clément, judgment of 06/06/2006, final on 06/09/2006

This case concerns the excessive length of proceedings concerning civil rights and obligations before administrative courts (violation of Article 6§1). The proceedings began in 1995 and lasted more than 8 years and 2 months, the major part before the local and national medical professional bodies.

Individual measures: None: as the proceedings are closed.

General measures:

            1) Excessive length of proceedings:

Measures adopted : This case presents 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.

The French authorities recently indicated that further measures had been adopted, concerning in particular the involvement of the Head of the Standing Inspectorate of Administrative Courts (mission permanente d'inspection des juridictions administratives) to avoid the excessive length of proceedings before administrative courts (on this point, see the Richard-Dubarry case, judgment of 01/06/2004, in section 4.2 at this meeting).

• Further measure required: in view of the specific nature of the proceedings in this case, the dissemination of this judgment to the medical professional body appears necessary.

• General information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

            2) Effective remedy: 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 this case).

A change is however to be noted in this respect: since 01/09/2005, this remedy falls under the exclusive jurisdiction of the Conseil Etat (Article R 311-1, paragraph 7, of the Code of Administrative Justice). The aim of this measure is that applications lodged on this basis are settled promptly, avoiding any excessive length of proceedings to engage the state's responsibility.

75699/01          Vaturi, judgment of 13/04/2006, final on 13/07/2006[20]

17902/02          Zentar, judgment of 13/04/2006, final on 13/07/2006[21]

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 that of Rachdad (judgment of 13/11/2003, in Section 6.1 at the 940th meeting, October 2005) and Mayali (judgment of 14/06/2005, Final Resolution CM/ResDH(2007)46). The European Court’s judgment in the Rachdad case was published 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. The European Court’s judgment in the Mayali was also disseminated to all competent courts.

Nonetheless, each case being specific, it seems necessary to publish and/or send out the European Court’s judgments in Vaturi and Zentar.

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

• General information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

76093/01          Barbier, judgment of 17/01/2006, final on 17/04/2006[22]

This case concerns the unfairness of certain criminal proceedings against the applicant, who was deprived of his right of access to a court (violation of Article 6§1) as a result of two specific circumstances: first, as a result of certain failures on the part of the administration at Reims Prison where the applicant was detained, his appeal against his conviction was declared inadmissible, the prison service having failed to transmit his notice of appeal in due time to the prison's registry. Secondly, there had been no adversarial proceedings at the hearing before the Court of Cassation at which the applicant's appeal was declared inadmissible, although this would have been necessary: according to the Code of Criminal Procedure, the applicant may only be heard on the designation of the Court of appeal, not on the admissibility of the appeal.

Individual measures: The applicant may apply for the re-opening of his appeal under Articles L 626-1 ff of the Code of Criminal Procedure. The European Court has awarded just satisfaction in respect of the non‑pecuniary damage sustained.

General measures:

            1) Violation of Article 6§1 because of the failures on the part of the prison service: The European Court, noting that in this case the procedure for lodging appeals relied merely on a practice, referred in particular to certain material problems: the absence at the prison in question of rules concerning such procedures, and times at which the registry is manned (§§ 28-30 of the judgment).

• Information provided by the French authorities (letter of 21/12/2006): Since the material time, several measures have been taken to set out appeal procedure in prisons in detail: an instruction of 20/12/2005 draws prison staff‘s attention to the need to transmit detainees’ appeals as rapidly as possible. An audit of rules of procedure in prison is under way with a view to drafting model rules. In 2003-2004, the National Prison Administration college (école nationale de l'administration pénitentiaire) initiated a programme of initial and further training, for administrative and security staff in prisons.

• Assessment: in view of this information, no further measure seems necessary.

            2) Violation of Article 6§1 due to the lack of adversarial proceedings: The Court noted in particular (§ 31) that “the applicant, in his capacity as appellant against a conviction handed down by an assize court, had only been able to submit observations on the choice of assize court of appeal (Article 380-14 of the Code of criminal proceedings) and not on the admissibility of the appeal (Article 380-15 of the Code of criminal proceedings)”.

• Confirmation is awaited that the European Court’s judgment has been sent to the Cour de cassation.

• General information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

67881/01          Gruais and Bousquet, judgment of 10/01/2006, final on 10/04/2006[23]

This case concerns the unfairness of certain criminal proceedings (violation of Article 6§1). The Cour de cassation held in 2000 that the applicants' appeals on points of law were inadmissible because they had been lodged after the time-limit. It had based its decision on the date of service as endorsed on the judgment and not the date on which the notice had actually been posted, as recorded by the postmark. The date endorsed on the judgment by the registry had not corresponded to the actual date of dispatch and this had had the effect of reducing the period of time that the applicants should have been given to lodge their appeal. Since it was a particularly short period (five clear days, or six days at most), its reduction by a half in this case had resulted in a particularly restrictive limitation of the actual time-limit for appeal.

Individual measures: The proceedings at issue were brought to contest the lawfulness of criminal actions against the applicants. In this context, it may be noted that before the European Court the applicants asked for compensation for the loss of the possibility of winning their appeal, but the Court held that it could not speculate as to the outcome of the proceedings had the violation not taken place and thus granted just satisfaction solely in respect of non-pecuniary damage (and costs and expenses).

• Assessment: as the applicants are entitled to apply for a review of the criminal judgment under Articles L 626-1 ff of the Code of Criminal Procedure, no further measure seems necessary.

General measures: The Court noted the government’s statement that the circumstances of the case (discrepancy between the date endorsed on the judgment and the actual date of dispatch) were “extremely rare” (§29). Thus the violation appears to be the consequence of a material error. In this context, it appears relevant that the judgment should be distributed within the Cour de cassation.

• Information is awaited in this respect.

• General information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

50278/99          Aoulmi, judgment of 17/01/2006, final on 17/04/2006[24]

This case concerns a hindrance of the effective exercise of the applicant's right of individual petition (violation of Article 34). In 1999, seised of a request concerning alleged violations of Articles 3 and 8 if the applicant were deported to Algeria, the Court indicated interim measures to the respondent state under Rule 39, to the effect that it would be desirable to refrain from deporting the applicant until the competent Chamber had given its decision. The respondent state did not comply with these measures. Thus, the European Court held that the applicant's removal to Algeria had hampered the examination of his complaints and had ultimately prevented the Court from affording him the necessary protection from any potential violations of the Convention. However, the Court said that there had been no violation of Articles 3 and 8.

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

General measures: The Secretariat wrote to the French authorities, inviting them to submit an action plan with a view to the execution of this judgment and in particular to make sure that in the future, measures indicated under Rule 39 be followed. 

In a letter dated 20/09/2006 the French delegation stated that since the European Court's judgment in Mamatkulov and Askarov against Turkey, the French government had been fully aware of the importance the Court attaches to compliance with the interim measures which it indicates.

The delegation specified that the facts of the Aoulmi case took place before the adoption of this judgment, with its important impact on the case-law. However since the Mamatkulov judgment the French government had complied with every request by the Court to suspend the enforcement of measures taken against applicants (cf. the cases of Gebremedhin, Application No. 2589/05; Sultani, Application No. 45223/05; Baraka, Application No. 15843/06; Aboubakar, Application No.27045).

The delegation also reported that the European Court's judgment in Aoulmi would shortly be published on the intranet site of the Ministry of the Interior, and that a commentary on the judgments in Mamatkulov and Askarov and Aoulmi prepared by the Directorate of Public Freedoms and Legal Affairs would be published in the next edition of the Ministry's legal information bulletin.

• Confirmation of these publications is awaited.

• General information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

49580/99          Santoni, judgment of 29/07/2003, final on 29/10/2003, revised on 01/06/2004, final on 01/09/2004[25]

The case concerns the excessive length of proceedings before the social security courts concerning an industrial accident (violation of Article 6§1). The proceedings began on 15/02/1988 and ended on 11/12/1998 (10 years, 9 months and 25 days).

The European Court noted in its judgment that the National Industrial Accidents Commission was responsible for several periods of inactivity.

Individual measures: None (proceedings are closed).

General measures:

• Confirmation is awaited that the requirements of the Convention as they flow from the Court’s judgment in this case have been appropriately brought to the attention of the authorities responsible for industrial accidents, in particular the National Industrial Accidents Board.

• Information has been provided on the publication / dissemination of this judgment. Furthermore, general information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

44568/98          R.L. and M.-J.D., judgment of 19/05/2004, final on 10/11/2004[26]

This case concerns ill-treatment inflicted on the applicants in 1993 in the course of an intervention by the police at their restaurant following a neighbourhood dispute, culminating in the arrest of the first applicant (violation of Article 3). It also concerns the unlawfulness of that arrest given the nature of the accusations which could be made against the applicant (violation of Article 5§1c), the unlawfulness of detaining him in a psychiatric clinic for more than six hours on account of the absence of a doctor empowered to order his release (violation of Article 5§1e) and the lack of reparation for the prejudice suffered as a result of being detained (violation of Article 5§5).

Individual measures: The European Court awarded just satisfaction in respect of the physical and mental hardship suffered by each of the applicants.

General measures:

- First, it is recalled that in the context of the Selmouni case (in section 6.2, following the measures adopted), the French delegation informed the Committee that a National Commission on Security Ethics (Commission nationale de déontologie de la sécurité) was created, with the task of “making sure that the deontology is respected by those working in the security field”, including police officers (see www.cnds.fr).

- The R.L. and M.-J.D. judgment will form part of the information given to the police in the framework of their human rights instruction and, as with all case-law of the European Court, will be studied and commented with regard to its practical consequences. Furthermore, this judgment and its consequences were presented during meetings with officials from the Central Directorate for Public Security. Finally, the National Commission on Security Ethics (see above) has been informed of the judgment.

- Drawing more specifically the consequences of the violation of Article 5§1e), found on account of the applicants’ prolonged detention in a police psychiatric clinic, the French authorities took measures which entered into force on 12/01/2005. According to the new system, a doctor of the psychiatric clinic empowered to authorise release may be reached by telephone at any moment by his / her colleague on duty at the clinic. According to the diagnosis made by the latter, this doctor may authorise immediate release if justified by the state of health of the person concerned.

• Confirmation is needed that the requirements of this judgment have been brought to the attention of doctors empowered to order the immediate release of persons kept in psychiatric clinics, whose state of health no longer justifies it.

As the competent national courts neither recognised nor remedied the violations at issue, confirmation is also awaited that this judgment of the European Court has been brought to their attention, as well as to that of public prosecutors.

• Information has been provided on the publication / dissemination of this judgment. Furthermore, general information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

- 4 cases against Greece

28340/02          Examiliotis No. 2, judgment of 04/05/2006, final on 23/10/2006[27]

10162/02          Eko-Elda Avee, judgment of 09/03/2006; final on 09/06/2006[28]

33554/03          Lykourezos, judgment of 15/06/2006, final on 15/09/2006[29]

71563/01          Diamantides No. 2, judgment of 19/05/2005, final on 19/08/2005[30]

- 1 case against Italy

10427/02           Roda and Bonfatti, judgment of 21/11/2006, final on 26/03/2007[31]

The case concerns a violation of the applicants' right to respect for their family life due to the authorities' failure, in 2002, in their duty to preserve the possibility of restoring family links between a child and her mother and brother in particular through the organisation of regular visits (violation of Article 8).

The European Court considered that measures to remove the child from the family and place it in care were justified and proportionate in view of the serious allegations of abuse against members of her family (§§112‑114), but that the prolonged interruption of relations between the child and the applicants and the defective organisation of encounters between them had breached the necessary balance between the interests of the child and those of the applicants (§125).

Individual measures: None is required, the child having attained her majority in 2006. The European Court awarded just satisfaction to both applicants in respect of non-pecuniary damage.

General measures: Subsequent to the facts at the origin of this case, a new Law (No. 149/01, which entered into force on 27/042001) changed the provisions concerning the adoption and care of minors. It provided in particular greater involvement of parents when taking emergency measures, not least the possibility for parents, assisted by counsel, to take part in the investigations ordered by the court, to submit claims and to ask the judge for disclosure of the file.

The law confirms courts' obligation to decide within 30 days on questions related to extending, changing or revoking emergency measures. Any suspension of proceedings must be reasoned and under no circumstances exceed a year.

• Information is awaited concerning the publication and dissemination of the European Court's judgment to the relevant authorities.

- 2 cases against Latvia

61005/00          Kornakovs, judgment of 15/06/2006, final on 15/09/2006

The case concerns the irregularity of the detention on remand of the applicant between 11/03/1998 and 26/11/1998, his detention order having been extended automatically on expiry on the basis of a practice having no basis in law (violation of Article 5§1).

The case also concerns the excessive length of the applicant's detention in remand (4 years, 2 months and 28 days) in the absence of sufficient reasons for extending it (violation of Article 5§3) for which there was not sufficient grounds (violation of Art. 5§3), and the excessive length of the succeeding criminal proceedings (6 years, 1 month and 10 days) due to periods of inactivity and several adjournments (violation of Art. 6§1).

The case further concerns breach of the applicant's right to respect for his private and family life due to the almost total refusal to allow him to receive family visits during his detention on remand and the censorship of his correspondence (violations of Art. 8). On the latter point, the European Court noted that the censorship was not provided by law.

Finally, the case concerns violations of the applicant's right of individual application due to the interception of a letter he had addressed to the European Court and the fact that he was punished for having been in contact with the European Court (violations of Art. 34).

Individual measures: The criminal proceedings against the applicant have been completed; he has served his sentence and was released on 11/10/2004. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: No further individual measure thus seems necessary.

General measures: This case presents similarities to the Lavents case (Section 6.2) in which the Latvian authorities have adopted the following measures:

            1) Violation of Article 5§1: The Article on the basis of which the applicant was kept unlawfully in the detention, namely Article 77 of the Code of Criminal Procedure, has been repealed by a law of 20/01/2005 which has entered into force on 01/02/2005.

            2) Violation of Article 5§3: 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. In May 2003, the Human Rights Institute of the University of Latvia organised a seminar on detention issues for judges, prosecutors, practicing lawyers, government and parliament representatives.

            3) Violation of Article 6§1: There does not seem to be a systemic problem of excessive length of criminal proceedings in Latvia. 

            4) Violation of Article 8 (family visits): On 29/04/2003, the Latvian government adopted the Regulation on the internal rules of the provisional detention centres, which provides inter alia that the administration of such an establishment should allow a detainee to contact his family or other persons.

            5) Violation of Article 8 (correspondence): The new Law on Criminal Procedure and the new internal Rules of pre-trial detention centres provide stricter conditions on monitoring of correspondence during the pre-trial investigation. Correspondence may be supervised only when investigating grave or extremely grave crimes and only for a period not exceeding 30 days. Moreover, it is prohibited to read the letters coming from the international human rights organisations.

            6) Violation of Article 34 (correspondence and punishment): In addition to the measures already taken, publication and dissemination with a cover letter, in particular to the prison authorities, seems necessary.

• Information is awaited in this respect.

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

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

- irregularity of the applicant's detention on remand between 18/05/2001 and 11/10/2001, her detention order having been extended automatically on expiry on the basis of a practice not provided in law (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 (Section 6.2) in respect of which the Latvian authorities adopted the following measures:

            1) Violation of Article 5§1: The Article on the basis of which the applicant was kept unlawfully in the detention, namely Article 77 of the Code of Criminal Procedure, has been repealed by a law of 20/01/2005 which has entered into force on 01/02/2005.

            2) Violation of Articles 5§3:

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.

            3) Violation of Article 5§4: The control of the lawfulness of pre-trial detention was introduced into the Code of Criminal Procedure in 1999.

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

- 6 cases against Poland

43425/98          Skałka, judgment of 27/05/03, final on 27/08/03, rectified on 16/09/03

The case concerns the criminal conviction (in 1995) of the applicant to 8 months' imprisonment for “insulting a state authority”, an offence defined under Article 237 of the 1969 Criminal Code which was in force at the material time. The European Court found this sanction to be disproportionate with the offence committed by the applicant who, while serving a prison sentence, wrote an insulting letter to the Penitentiary Division of the Regional Court – a letter which was not made public and in which the applicant expressed his anger and frustration, yet made no concrete complaints (violation of Article 10).

Individual measures:

• Information provided by the Polish authorities: Under Article 540§3 of the Code of Criminal Procedure, the applicant may request the reopening of the criminal proceedings brought against him, by invoking the violation of the Convention found by the European Court.

• Evaluation: no other individual measure appears necessary.

General measures:

• Measures taken: The judgment of the European Court has been published on the internet site of the Ministry of Justice www.ms.gov.pl <http://www.ms.gov.pl>.

• Information is awaited on its dissemination to criminal courts.

                       - Cases concerning freedom of expression

18235/02          Dąbrowski, judgment of 19/12/2006, final on 19/03/2007

51744/99          Kwiecień, judgment of 09/01/2007, final on 09/04/2007[32]

These cases concern the violation of the applicants' right of freedom of expression (violations of Article 10).

In the Dąbrowski case the applicant, a journalist, was convicted of criminal defamation for having published articles about the Deputy Mayor of Ostróda.

In the Kwiecień case, a civil court found against the applicant in October 1998 under the Law on Local Elections in proceedings brought by Mr S. L., Head of the Dzierżoniów District Office, for having sent out, the previous month, just before local elections, an open letter in which the applicant alleged that Mr S. L. had been incompetent and had broken the law in the exercise of his professional functions, and calling on him to withdraw his candidature.

In the both these cases the European Court concluded that the findings of the national courts, particularly in view of the penalties imposed, were not “necessary in a democratic society”.

Accordingly, in the Dąbrowski case, it noted that the applicant had been found guilty of an offence, and that this verdict potentially threatened the freedom of the press to contribute to the public debate on questions of community interest. In the Kwiecień case, the Court considered that the national courts had not given sufficient reason for awarding maximum damages against the applicant.

Individual measures:

            1) Dąbrowski case: By a judgment of 7/11/2000, upheld at appeal by the Olsztyn Regional Court on 18/10/2001, the criminal proceedings against the applicant were conditionally discontinued and he was ordered to pay 1000 PLN to a charity and 300 PLN in costs to the prosecution (in all, a total of approximately 330 euros). The applicant has no criminal record.

The European Court awarded the applicant just satisfaction in respect of the non-pecuniary and pecuniary damage sustained, not least to cover the pecuniary penalty imposed.

In addition, under Article 540§3 of the Code of Criminal Procedure, the applicant may apply for the reopening of the criminal proceedings against him on the grounds of the finding of the European Court (See the Skałka case,, in Section 5.3).

            2) Kwiecień case: The applicant was ordered to withdraw his accusations and apologise. He was also ordered to pay 10 000 PLN to Mr S. L. in non-pecuniary damages, 10 000 PLN to a charity and 1500 PLN costs before the appeal court.

The European Court awarded the applicant just satisfaction in respect of the non-pecuniary and pecuniary damage sustained, not least to cover the damages which he had been ordered to pay.

• Reopening of domestic proceedings: In 1999 the applicant applied to have the proceedings reopened, but in vain. Following an appeal lodged by the applicant, the Constitutional Court delivered a decision on 13/05/2001 finding that Article 72§3 of the Law on Local Elections was unconstitutional in that it prevented the reopening of the domestic proceedings in question. The applicant asked for an interpretation of this decision, and on 14/04/2004 the Constitutional Court confirmed that proceedings closed by a decision (postanowienie) rendered on the basis of a legal disposition which had been declared unconstitutional could be reopened.

General measures: In both cases the violations found arise from the failure of domestic courts to take account in their practice of the criteria flowing from the Convention and the European court's case-law concerning the right of freedom of expression, in particular through not adequately examining the evidence submitted by the applicants and by giving insufficient reasons for decisions of some gravity against them. In the Kwiecień case the violation also resulted from the application of a specific provision, i.e. Article 72 of the 1998 Law on Local Elections, which allowed the domestic courts to impose high financial sanctions on the applicant.

            1) Publication and dissemination of the judgments:Both judgments have been published on the website of the Ministry of Justice www.ms.gov.pl. By letter of 25/10/07 the Government Agent requested the Minister of Justice to ensure their broad dissemination.

            2) Other general measures taken to avoid violations similar to that in the Kwiecień case: Article 72 of the 1998 Law on Local Elections was amended on 26/07/2002 specifically to repeal the provision making it possible to order the payment of damages. Moreover, the authorities provided examples of the case-law of certain appeal courts concerning the application of this provision (decisions of the Katowice Court of Appeal of 01/10/1998 in case No I ACz 972/98 and of 07/11/2002 in case No I ACz 1956/02 and the decision of the Białystok Court of Appeal of 10/11/2006 in case No I ACz 872/06). It results that Article 72 should be interpreted narrowly and applied only in case of untrue information included in electoral material.

• Information is awaited on the dissemination of the two judgments of the European Court to relevant courts.

49913/99          Zielonka, judgment of 08/11/2005, final on 08/02/2006

This case concerns the unlawfulness of the applicant's detention on remand (violation of Article 5§1).

In February 1988, the applicant was kept in custody for three days without any judicial basis, as the Łódź District Court had failed to prolong his detention on remand immediately upon expiry of the initial period.

Individual measures: None. The European Court has awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. Moreover, in a letter of 28/04/1998, the Łódź District Court admitted its mistake and stated that the three-day period would be deducted from any prison sentence eventually imposed on the applicant.

General measures:

• Measures taken: The European Court's judgment has been published on the website of the Ministry of Justice www.ms.gov.pl.

• Information is awaited on the dissemination ofthe European Court's judgment to criminal courts.

38797/03           Ambruszkiewicz, judgment of 04/05/2006, final on 23/10/2006

This case concerns the irregularity of the applicant's detention on remand (violation of Article 5§1).

In 2002, the applicant was suspected of having made false accusations against certain police officers and local magistrates. At a hearing before the District Court of Szczecinek in May 2003, the judge remanded him in custody for three months for having obstructed the proceedings and for failing to appear following an interruption of the hearing.

The European Court concluded that the authorities advanced no essential argument (i.e. the complexity of the case or the seriousness of the sentence the applicant would face if convicted) allowing it to be supposed that the applicant might actually obstruct the proceedings. In addition, the authorities had not considered the use of alternative means of constraint (having the police return the applicant to court, liberation on bail, police supervision). The Court thus concluded that the detention, although provided by law, was arbitrary.

Individual measures: The applicant was freed on 23/07/2003. The European court awarded him just satisfaction in respect of the non-pecuniary damage sustained.

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

General measures: Given the direct effect of the convention in Poland, the publication of the European Court's judgment on the internet site of the Ministry of Justice and its dissemination, together with a circular, to criminal courts seem sufficient to prevent new, similar violations.

• Measures taken: The European Court's judgment was published on the website of the Ministry of Justice: www.ms.gov.pl.

• Information is awaited on its dissemination.

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 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). On the grounds of Article 76§1 of the Criminal Code, her conviction was automatically removed from her criminal record on 18/05/2001.

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, Section 5.3).

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

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 provided by the Polish authorities (letter of 28/11/2006): The Justices of the Supreme Court may inform themselves of the European Court's judgment through the Review of the European Judicature in Criminal Cases (Przegląd Orzecznictwa Europejskiego dotyczącego Spraw Karnych), No. 1-2/2006, which may be found on that court's Intranet website.

• Information is awaited on the publication of the European Court's judgment on the Internet site of the Ministry of Justice and its dissemination to criminal courts.

- 3 cases against Romania

38565/97          Cotleţ, judgment of 03/06/03, final on 03/09/03

The case concerns interference with the correspondence between the applicant, a prisoner, and the Convention institutions, resulting from delays in forwarding his letters to the Court and the Commission (before 20 October 1997), the opening (even after this date) of his letters addressed to these institutions, and the prison authorities’ refusal to provide him with paper, envelopes and stamps for his letters to the Court. In this connection, the European Court concluded that the relevant domestic provisions were not public or not sufficiently precise with regard to the conditions under which interference with prisoners’ correspondence was permissible (violations of Article 8).

The Court also concluded that the applicant had been subjected to unlawful and unacceptable pressure which violated his right of individual application (violation of Article 34).

The case presents similarities, concerning the opening of letters and the delays in forwarding them as well as the violation of the right of individual application, with that of Petra against Romania (judgment of 23/09/98), (Section 1.1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of both pecuniary and non-pecuniary damage.

General measures:

            1) Interference with detainees’ correspondence: An “Emergency ordinance” (No. 56/2003) was adopted by the government in June 2003 and ratified by Parliament in October 2003. It provides that petitions sent by detainees to public institutions, judicial organs or international organisations are confidential and may not be opened or retained. The same provisions are reiterated in the new law on execution of criminal sentences published in the Official Gazette on 01/07/2004. In 2003, pursuant to these provisions, the National Prisons Administration on several occasions ordered prison staff to respect the principle of confidentiality and set up rules for the organisation of the exercise of detainees’ right to confidentiality of their correspondence (e.g. post boxes have been installed, to which detainees have been granted daily access).

            2) Costs of correspondence with the Court: “Emergency ordinance” No. 56/2003 also provides that such costs are borne by the detainee. However, for those who do not have the necessary means, the law provides that costs are covered by the prison administration.

• Information provided by the Romanian authorities: In this context, the Romanian authorities have provided information on the sums of money allocated in 2004 to give detainees the materials needed to exercise their right to correspondence and to send petitions. At the 906th meeting (December 2004), the Romanian delegation also indicated that all requests of this type have been granted by the prison authorities.

            3) Violation of Article 34:

• Information provided by the Romanian authorities: The European Court’s judgement in the Cotleţ case was published in the Official Gazette and was sent out to all prisons in June 2003. In addition, following the European Court's judgment of 23/09/1998 in the Petra case, a circular letter was sent to the competent authorities in 1999.

However, since the violation found in the present case occurred after this date (i.e. in 2000), the Secretariat has emphasised the usefulness of sending a circular letter to all prison authorities, stressing that it is prohibited to exert any form of pressure or intimidation on prisoners who wish to exercise their right to correspond freely with the European Court.

• Additional information is expected in this respect.

58472/00           Dima, judgment of 16/11/2006, final on 26/03/2007[33]

The case concerns the unfairness of a hearing on an appeal on points of law before the Supreme Court of Justice, due to that court's failure of the to address one of the applicant's grounds of appeal in civil proceedings (violation of Article 6§1). On 17/10/2000 the Supreme Court of Justice rejected the applicant's appeal without addressing his argument concerning the invalidity of an expert report on the basis of which the courts had dismissed his application in proceedings against a certain company.

The European Court noted that in view of its relevance and its potential impact on the outcome of the proceedings, this ground of appeal called for a specific and express reply. In the absence of such a reply, it was impossible to ascertain whether the Supreme Court had simply neglected to deal with the argument or whether it had intended to dismiss it and if so, why.

Individual measures: Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court found a violation. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

General measures: It seems that this was an isolated instance of failure to comply with the law.

• Publication and dissemination of the European Court's judgment among relevant courts and authorities is expected in order to raise domestic courts' awareness of the Convention's requirements as they result from this case.

53037/99           Ionescu Virgil, judgment of 28/06/2005, final on 28/09/2005

The case first concerns the unfairness of proceedings brought by the applicant to obtain the adjustment of a sum of money which the state had been ordered to pay him by a court decision of October 1991. The applicant’s claim was rejected by the domestic courts (at last instance in September 1998) in view of the fact that his request for an expert opinion establishing the amount of the adjusted debt had been lodged out of time. Nevertheless, the European Court concluded that the request for an expert opinion had been made in accordance with the relevant provisions of the Code of Civil Procedure, so that its dismissal had infringed the applicant’s right to a fair hearing.

The case also concerns a violation of the applicant’s right of access to a court in view of the non-enforcement of the 1991 court decision. The European Court stressed that the applicant could not be criticised for failing to pursue the enforcement of this judgment after 1998, since inflation had significantly diminished the sum owed to him (violations of Article 6§1). Moreover, the Court found that the failure to comply with the final judgment of 1 October 1991, as well as the refusal to adjust the sum owed to the applicant, constituted an infringement of the applicant’s right to respect for his possessions (violation of Article 1 of Protocol No. 1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the pecuniary and non-pecuniary damage resulting from the violations.

General measures: The Secretariat notes that the Committee of Ministers is examining the question of non-enforcement of court decisions in the framework of the case of Popescu Sabin (Section 4.2).

Nevertheless, this question is closely related, in the present case, to the violation of the right to a fair trial flowing from the dismissal of the applicant’s request for the adjustment of the debt. The publication and wide dissemination of the judgment of the European Court to domestic courts are therefore awaited.

- 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 provided by the Swedish authorities:The European Court's judgment has been translated and published on the government's website (www.manskligarattigheter.gov.se) and on the website of the National Courts Administration (www.domstol.se).

• Information is still awaited: on the dissemination of the European Court's judgment to the relevant authorities.

- 4 cases against Turkey

1855/02 Kök, judgment of 19/10/2006, final on 19/01/2007

The case concerns the violation of the applicant's right to a fair trial due to the failure by the domestic court to disclose part of the case file to her. In 1995, the applicant brought proceedings to obtain recognition by the Ministry of Health of specialised medical training she had undergone abroad. During the proceedings, the Supreme Administrative Court requested details from the Ministry of Health regarding the applicant's situation in relation to the applicable legislation.

In 2001 the Ministry wrote to the court asserting that she did not satisfy the statutory requirements for recognition. The Supreme Administrative Court failed to forward this letter to the applicant for her counter-observations and dismissed the appeal.

The European Court found that the failure to communicate the letter infringed the principle of equality of arms (violation of Article 6§1).

The case also concerned the excessive length of the proceedings in particular before the Supreme Administrative Court (six years before three levels of jurisdiction) (violation of Article 6§1).

Individual measures: Regarding the first violation: the European Court awarded just satisfaction in respect of non-pecuniary damage. Regarding the second violation: proceedings are closed.

•Assessment: no individual measure seems necessary.

General measures:

1) Right to a fair trial: It appears from the judgment that the domestic court's failure to forward the letter resulted from its misapplication of the rules of procedure or negligence. Therefore, publication and dissemination of the judgment to the judiciary seem necessary.

2) Length of the proceedings: General measures are being examined at the present meeting in the context of the Ormanci group (Section 5.1).

34494/97          H.M., judgment of 08/08/2006, final on 08/11/2006

The case concerns the violation of the applicant’s right to respect of the home on account of the inadequate investigation carried out by the prosecutor’s office into the applicant’s allegation that his home was subjected to an unauthorised search by police officers. The prosecutor ruled that there was no case to answer, given the “absence of an act constituting any offence” (violation of Article 8), solely on the basis of the information provided by various departments of police.

At the relevant time the applicant was a prominent member of a trade union. On several occasions between 1995 and 1996, he was prosecuted for participating in unauthorised demonstrations and meetings. He, in turn, filed criminal complaints, claming to have been a victim of police brutality.

The European Court found no tangible evidence to conclude with certainty that a search had been carried out at the applicant’s home. Nonetheless, the Court considered that, having regard to the applicant’s past, the prosecutor might have been expected to examine whether he was likely to have been subjected to acts of intimidation and to at least question the members of the applicant’s family who had witnessed the alleged search.

Individual measures: In June 2003, after the Court had communicated this application to the Government, the prosecutor invited the police authorities concerned to identify the officers likely to have conducted the search of the applicant’s home. However, that initiative proved fruitless as the authorities replied that the investigations had resulted in a finding that there was no case to answer, and that, in the meantime, the prescription period had expired. In light of the foregoing, it appears that a fresh investigation is unlikely to shed light on the incident that had allegedly taken place 11 years ago.

General measures: Under Article 119 of the new Code of Criminal Procedure (“CCP”) dated 2004, a search may be carried out only upon a search warrant issued by a competent court (or a public prosecutor in urgent cases). Article 119 also lays down the necessary conditions of a search warrant, such as the justifying reasons for a given search, the address of the premises and a validity period. Article 120 of the Penal Code makes “unauthorised searches” a crime, punishable by three months to one year imprisonment. Pursuant to Article 173 of CCP, a prosecutor’s decision not to initiate criminal proceedings is subject to appeal before an assize court. It thus appears that today Turkish law provides sufficient procedural safeguards against illegal home searches. 

• Information is awaited on publication and dissemination of the Court’s judgment to judicial authorities and any other measures that the State might envisage to take.

70845/01          Kılıç Taner, judgment of 24/10/2006, final on 12/02/2007[34]

The case concerns a violation of the applicant's right to respect for his private and family life and correspondence. At the material time, the applicant was a member the executive committee of an association against which a state security court issued a search warrant covering its headquarters and branches, to collect evidence of any illegal activities. Maintaining that the situation was urgent, the public prosecutor extended the scope of the search warrant and ordered the search of the homes and offices of the association's general director and committee members. The applicant's home and office was searched by the police who confiscated two videotapes and photocopied various documents.

The European Court found that the search warrant initially issued by the court was interpreted too broadly. It observed that the search and seizures were extensive and that privileged professional material was taken without legal authorisation (violation of Article 8).

Individual measures: The videotapes and documents confiscated were later returned. The European Court awarded just satisfaction in respect of non-pecuniary damage sustained. These measures taken together appear to constitute sufficient individual measures.

General measures:

• Information is awaited on the measures taken or envisaged by the Turkish authorities with a view to preventing new, similar violations. At the outset, the publication and dissemination of the judgment to the relevant authorities appear necessary.

34478/97          Fener Rum Erkek Lisesi Vakfi, judgment of 09/01/2007, final on 09/04/2007, rectified on 22/05/2007

The case concerns the violation of the right to peaceful enjoyment of the possessions of the applicant, a foundation under Turkish law which was set up at the time of the Ottoman Empire. Its constitutive documents adhere to the provisions of the Lausanne Treaty of 1923 affording protection to old foundations providing public services for religious minorities. In 1936 the applicant foundation filed a declaration of its aims and immovable property, in accordance with a law of 1935 by virtue of which it had obtained legal personality. In 1952 the applicant foundation acquired by donation part of a building in Istanbul and purchased another part in 1958.

In 1992 the Treasury applied for the annulment of the foundation’s title deeds in respect of this property and the deletion of its name from the land register. In 1996 the Civil Court granted the application. Basing its decision on an expert report which referred to a Court of Cassation precedent from 1974, the court held that foundations belonging to religious minorities as defined by the Lausanne Treaty and whose constitutive documents did not indicate a capacity to acquire immovable property were precluded from purchasing or accepting donation of such property. Accordingly, their immovable property was restricted to that set out in their constitutive documents and finalised in the declaration of property made in 1936. The Court of Cassation upheld the judgment.

The European Court noted that no provision in the 1935 law prohibited the foundations concerned from acquiring assets other than those included in their declaration. Accordingly, the authorities had validated the applicant’s acquisitions of 1952 and 1958 under the legislation applicable at the time. The applicant had thus been certain of having acquired the properties lawfully at the time of the acquisitions in 1952 and 1958, and until the 1974 case-law had had “legal certainty” that it was entitled to acquire immovable property. The court emphasised that the applicant had been able to enjoy its property as rightful owner, from the dates of acquisition until the date of the judgment of the Court of Cassation (1996), and had paid the various property taxes in respect of it. Moreover, the applicant’s acquisitions had been validated by a certificate from the provincial governor’s office and entered in the land register. Consequently, the annulment of the applicant foundation’s title to property pursuant to case-law adopted 16 years and 22 years after its acquisition was incompatible with the principle of legality and could not have been foreseen (violation of Article 1 of Protocol No. 1).

Individual measures: The European Court held that Turkey was to re-enter the property in the land register under the applicant’s name within three months of the date on which the European Court’s judgment becomes final. Failing such re-registration, the state was to pay the applicant 890 000 euros in respect pecuniary damage.

• Information received (11/09/2007): the applicant received the full amount of pecuniary damages on time.

General measures: The legal framework governing foundations was amended in 2002 and 2003 to allow community foundations of minorities, such as the applicant, to acquire or otherwise dispose of immovable property regardless of whether they were entitled to such a right in their constitutive documents (§§29-30 of the judgment).

• Information is awaited on any other measures taken or envisaged by the Turkish authorities to prevent similar violations, such as the publication and dissemination of the Court’s judgment to the judicial authorities and relevant administrative bodies with necessary instructions.

The Secretariat has sent an initial-phase letter to this effect on 27/08/2007

 

SUB-SECTION 5.4 – OTHER MEASURES

- 3 cases against Greece

40907/98          Dougoz, judgment of 06/03/01, final on 06/06/01, Interim Resolution ResDH(2005)21

28524/95          Peers, judgment of 29/09/99, final on 19/04/01, Interim Resolution ResDH(2005)21

                        Interim Resolution ResDH(2005)21

The first case concerns the conditions of the applicant's detention in 1997, in the Alexandras Avenue (Athens) Police Headquarters and the Drapetsona (Piraeus) police detention centre, which amounted to degrading treatment (violation of article 3). The case also concerns the fact that the applicant's detention pending expulsion was not in accordance with a procedure “prescribed by law” within the meaning of the Court's case-law (violation of Article 5§1). Finally, the case concerns the fact that the domestic legal system did not afford the applicant an opportunity to have the lawfulness of his detention pending expulsion determined by a national court (violation of Article 5§4).

The second case concerns the conditions of the applicant's detention in 1994, in Korydallos prison, which amounted to degrading treatment (violation of article 3). The case also concerns the opening by the prison administration of letters addressed to him by the Secretariat of the former European Commission of Human Rights, a measure considered by the Court as unnecessary in a democratic society (violation of Article 8).

Individual measures: The applicants are no longer detained in Greece. They were expelled in 1998.

General measures:

            1) Violations of Article 5§§1 and 4 in the Dougoz case:

• Information provided: The detention and expulsion of aliens following a court order are now regulated by Inter-ministerial Decision 137954 (OJHR B 1255/16.10.2000), issued under Immigration Law 1975/1991 and making express reference to Article 5§1f of the Convention. According to this Decision, the detention of aliens under expulsion following a court order is now subject to control by the public prosecutor and the courts.

            2) Violation of Article 8 in the Peers case:

The Penitentiary Code (Art 53§§ 4 and 7 of Law 2776/1999) may now be regarded as providing sufficient safeguards for the protection of prisoners' correspondence.

            3) Common violation of Article 3

• Information provided on Greek authorities' action plan:

Measures to improve detention conditions in police and other detention centres

- A new centre for the transfer of detainees has opened in Athens (Petrou Ralli Avenue). It has a total area 25,000m² and one of its wings is used solely for detainees pending expulsion. This wing has a capacity of 208 men, 150 women and 20 minors.

- Seven new detention centres opened in various police headquarters, four of which on the border islands of Chios, Samos, Lesbos and Corfu. On Samos an immigrants' reception centre is also under construction.

Measures to improve detention conditions in prisons

- Construction of new prisons: A new prison in Trikala opened in June 2006. Six more are expected to open in 2007 in Drama, Serres, Chania, Domokos, Grevena and Thiva. Each will have a capacity of 400 persons. The construction of five more prisons is scheduled to start in 2008. All these new prisons are constructed in accordance with international standards: the detainees are kept in cells of 2 persons; each cell is 15m² with toilet, shower and windows allowing their lighting and airing. Training and multi-purpose rooms, laboratories and libraries are also provided for. Moreover, important renovation works are carried out in many prisons.

Special measures for preventing prison overpopulation

- On 12/09/05 Law 3388/2005 entered into force providing, inter alia, that the reception capacity of the present “independent prisons” may not exceed 300 detainees, while the future, new ones should not exceed 400.

- A programme of detainees' segregation according to age, the nature of offences and the gravity of penalties is under way;

- Law 3346/2005 provides that convicts who have served a part of their sentence may be set free under certain conditions. Since its application, 400 detainees have benefited.

- Justice Minister decision 138317/2005 introduced the possibility of measures alternative to imprisonment under conditions. These consist of community service; 102 public institutions participate in this programme with, (until September 2006), 756 beneficiaries.

- Justice Minister decision 8508/2005 has allowed the transfer to agricultural prisons (which are less crowded) of 650 detainees.

Training of prison staff: In 2005 125 prison surveillance staff members took part in seminars on the treatment of detainees.

Education and professional training of detainees:

a) “Second chance” schools are operational in the Korydallos and Larissa prisons, in co-operation with the Education Ministry, benefiting young detainees without professional training. Participation in these programmes results in the halving of detainees' sentences;

b) In minors' prisons now there exist primary and secondary schools run in cooperation with the Education Ministry.

Drug-dependent detainees: Support programmes exist for the support of these detainees, also providing for the follow-up of their treatment after release.

In 2005, for the first time, cultural, artistic and sport events took place in various prisons in the context of the programme “life is everywhere”.

• Information expected on common violation of Article 3:

1) Despite measures adopted so far, further major improvements of detention conditions in prisons or detention centres are necessary. It is noted that concerns in this respect have been expressed in the Human Rights Commissioner's follow-up Report on Greece (CommDH(2006)13, 29/03/06, §§14-19) and in the report of CPT on its 2005 visit to Greece (CPT/Inf(2006)41) where CPT welcomed the measures already taken by Greece but noted that “there is still much to be done and the authorities need in particular to invest greater efforts to tackle the systemic deficiencies in the prison service and the establishments holding foreigners nationals” (§7).

Thus, more, concrete information is awaited on the improvement of detention conditions in prisons and police and other detention centres.

2) The Greek authorities have informed the Committee that given that 35% of the prison population is aliens, a programme is under way for their return to serve their sentences in their country of origin and that special co‑operation is in place with Albania to build a new prison there financed by Greece, given that 50% of alien detainees come from that country. More information is also awaited;

3) Information is also awaited on the construction of immigrants' reception centre on Samos mentioned above and on any other new, similar centres, as well as on the progress of the detainees' segregation programme;

• Finally, information is awaited on the existence of domestic effective remedies in similar cases concerning degrading detention conditions under Article 3, in accordance with Recommendation of the Committee of Ministers to member states Rec(2004)6 on the improvement of domestic remedies.

32927/03           Kaja, judgment of 27/07/2006, final on 27/10/2006

The case concerns degrading treatment suffered by the applicant, a foreigner, due to his detention for approximately three months (July 2003 – October 2003) at a police detention centre in Larissa pending judicial expulsion. The European Court considered that this detention centre “was not suitable for periods of detention as long as that of the applicant. By its very nature, it was designed to house defendants for short periods, not for a period of three months. The centre possessed certain features liable to produce feelings of isolation among detainees, with no outdoor walking or physical exercise space, no in-house catering facilities and no radio or television to provide contact with the outside world. While the centre provided conditions which were acceptable for a short period of detention, it was not suited to the requirements of extended periods of imprisonment” (§49 of judgment) (violation of Article 3).

Individual measures: The applicant was expelled in 2004. No individual measure is necessary.

General measures: The case presents certain similarities to that of Dougoz (section 5.4 – see §50 of judgment), in the context of which Greece has been adopting a series of general measures (see appendix to Interim Resolution ResDH(2005)21 on the cases of Dougoz and Peers).

• Information awaited: Given that the present case highlighted in particular the problem of excessively lengthy detention of aliens in police detention centres pending expulsion, information is awaited on further measures envisaged to prevent similar violations (see measures already adopted in this respect in section II.A of the appendix to the Resolution mentioned above). Information is also awaited on publication and wide dissemination of the Court’s judgment to competent judicial and police authorities.