Ministers’ Deputies

Decisions

CM/Del/Dec(2011)1115 - Volume resolutions      10 June 2011



1115th meeting (DH), 7-8 June 2011

Decisions adopted

Volume of Resolutions



CONTENTS

Resolution CM/ResDH(2011)39 6
Meltex and Mesrop Movsesyan against Armenia 6

Resolution CM/ResDH(2011)40 9
Harutyunyan against Armenia 9

Resolution CM/ResDH(2011)41 13
in 25 cases against Austria 13

Resolution CM/ResDH(2011)42 15
P.B. and J.S. against Austria 15

Resolution CM/ResDH(2011)43 17
Capeau against Belgium 17

Resolution CM/ResDH(2011)44 19
Suljagić against Bosnia and Herzegovina 19

Resolution CM/ResDH(2011)45 23
Šobota-Gajić against Bosnia and Herzegovina 23

Resolution CM/ResDH(2011)46 26
United Macedonian Organisation Ilinden and Ivanov and Ivanov and others against Bulgaria 26

Resolution CM/ResDH(2011)47 30
Buj against Croatia 30

Resolution CM/ResDH(2011)48 33
Ćosić and Paulić against Croatia 33

Resolution CM/ResDH(2011)49 36
Gabrić against Croatia 36

Resolution CM/ResDH(2011)50 39
Kovač against Croatia 39

Resolution CM/ResDH(2011)51 42
Prežec against Croatia 42

Resolution CM/ResDH(2011)52 44
Vajagić against Croatia 44

Resolution CM/ResDH(2011)53 47
Vrbica against Croatia 47

Resolution CM/ResDH(2011)54 49
Serghides and Christoforou against Cyprus 49

Resolution CM/ResDH(2011)55 51
Pešková against Czech Republic 51

Resolution CM/ResDH(2011)56 53
in 4 cases against Finland 53

Resolution CM/ResDH(2011)57 54
Paturel, Giniewski, Brasilier, Dupuis et autres, Desjardin, Chalabi, Brunet-Lecomte et Sarl Lyon Mag’,
Orban et autres, Brunet-Lecomte et Tanant, Brunet-Lecomte et Lyon Mag’, Haguenauer against France
54

Resolution CM/ResDH(2011)58 58
Laine against France 58

Resolution CM/ResDH(2011)59 60
Naudo and Maloum against France 60

Resolution CM/ResDH(2011)60 61
Plasse-Bauer against France 61

Resolution CM/ResDH(2011)61 63
Crochard and 6 other cases against France 63

Resolution CM/ResDH(2011)62 66
Zielinski and Pradal and Gonzalez and others, Aubert and autres and 8 other cases, Cabourdin,
Achache, De Franchis, Ducret, Lecarpentier and others, Saint-Adam and Millot, Vezon, Arnolin and others
and 24 other cases, Chiesi S.A. and SCM Scanner de l'Ouest Lyonnais and others and
Javaugue against France
66

Resolution CM/ResDH(2011)63 71
Donadze against Georgia 71

Resolution CM/ResDH(2011)64 74
Gurgenidze against Georgia 74

Resolution CM/ResDH(2011)65 76
Three cases against Germany 76

Resolution CM/ResDH(2011)66 77
Scoppola against Italy 77

Resolution CM/ResDH(2011)67 80
Kreuz No. 1 and 11 other cases against Poland 80

Resolution CM/ResDH(2011)68 83
Płoski and Czarnowski against Poland 83

Resolution CM/ResDH(2011)69 85
Szymoński against Poland 85

Resolution CM/ResDH(2011)70 87
Bessler against Romania 87

Resolution CM/ResDH(2011)71 89
in three cases against Romania concerning the lack of sufficient reasons for holding the applicants
liable for insult and defamation
89

Resolution CM/ResDH(2011)72 92
in nine cases against Romania concerning the lack of access to court due to excessive court fees 92

Resolution CM/ResDH(2011)73 94
in five cases against Romania concerning criminal convictions of journalists for insult and/or defamation 94

Resolution CM/ResDH(2011)74 99
Ghibusi against Romania 99

Resolution CM/ResDH(2011)75 101
Ionescu and Negoiţă against Romania 101

Resolution CM/ResDH(2011)76 102
Virgil Ionescu against Romania 102

Resolution CM/ResDH(2011)77 105
Stojanović, Jovančić & Milošević against Serbia 105

Resolution CM/ResDH(2011)78 107
Allard against Sweden 107

Resolution CM/ResDH(2011)79 109
Khurshid Mustafa and Tarzibachi against Sweden 109

Resolution CM/ResDH(2011)80 112
Nikolov against “the former Yugoslav Republic of Macedonia” 112

Resolution CM/ResDH(2011)81 114
Dumanovski, Docevski & Blage Ilievski against “the former Yugoslav Republic of Macedonia” 114

Resolution CM/ResDH(2011)82 117
Omojudi and A.W. Khan against the United Kingdom 117

Resolution CM/ResDH(2011)83 120
Liberty and others against the United Kingdom 120

Resolution CM/ResDH(2011)84 122
NA. against the United Kingdom 122

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)391

Execution of the judgment of the European Court of Human Rights

Meltex and Mesrop Movsesyan against Armenia

(Application No. 32283/04, judgment of 17/06/2008, final on 17/09/2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant company's right to freedom of expression on account of the refusal by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting license without giving reasons for its decisions (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

Having taken note that the applicant company had participated in a tender in December 2010, that it received a reasoned decision from the NTRC and that it has the possibility to contest the results of the licensing tender in the courts of the Republic of Armenia ;

Having taken note of the authorities' commitment that the NTRC will fully and properly substantiate and reason its decisions, “both in respect of winners of competitions as well as other participants”;

Recalling that, beyond the above commitment, there are ongoing discussions, with the assistance of the Council of Europe and the Organisation for Security and Cooperation in Europe, on amendments to the TV and Radio Broadcasting Act, and that these discussions provide an opportunity to increase legal certainty by facilitating the enactment of a provision in the Law expressly requiring the NTRC to give full reasons for all its decisions on broadcast licensing,

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)39

Information about the measures to comply with the judgment in the case of

Meltex and Mesrop Movsesyan against Armenia

      Introductory case summary

The case concerns a violation of the applicant company's freedom of expression on account of the refusal by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting license (violation of Article 10).

The European Court concluded that there had been interference with the applicant company's freedom to impart information and ideas and that this interference had not met the requirement of lawfulness under the European Convention. The Court noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

20000 EUR

10000 EUR

30000 EUR

Paid on 27/11/2008

b) Individual measures

A call for new licensing tenders for digital broadcasting on 25 national and local frequencies was announced on 20 July 2010. The applicant company took part in a tender for one frequency (competition No. 11). The results of the licensing tender “On winners in the 11th competition” are set out in Decree No. 96-A of the National Television and Radio Commission, dated 16 December 2010. The applicant company did not win the tender. Nothing prevents it from contesting the results of the licensing tender in the courts of the Republic of Armenia.

      II. General measures

The Law on Amendments and Additions to the Television and Radio Broadcasting Act was adopted on 10 June 2010.

The provision of the TV and Radio Broadcasting Act concerning reasoning of decisions of the NTRC, Article 49(3), reads as follows “The National Commission shall decide the winner of the competition on the basis of the results of the point-based vote. The decision of the National Commission shall be properly substantiated and reasoned”.

In order to alleviate any misunderstanding of the obligation on the NTRC to reason all types of decisions, the Government Agent made the following official statement : “Article 49(3) of the TV and Radio Broadcasting Act should be interpreted in accordance with Article 10 of the Convention, and in the light of the Meltex judgment, in a way that a single decision of the Commission provides a full and proper substantiation and reasoning of the results of the points-based vote, including both in respect of the winner of the competition, as well as of all of its other participants”.

Moreover, the judgment of the Court has been translated into Armenian and published in relevant official publications, both print and electronic, of the Republic of Armenia. The text is available, inter alia, on the official websites of the Ministry of Justice of Armenia, www.moj.am, and of the judiciary of the Republic of Armenia, www.court.am. The Armenian text of the judgment has also been sent to the National Television and Radio Commission and to the Court of Cassation of the Republic of Armenia.

It is therefore expected that any future decision of the NTRC will be taken in conformity with the European Convention of Human Rights and the case-law of the European Court of Human Rights.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Armenia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)402

Execution of the judgment of the European Court of Human Rights

Harutyunyan against Armenia

(Application No. 36549/03, judgment of 28/06/2007, final on 28/09/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant’s right to a fair trial on account of the use during his trial of statements obtained from him and two witnesses under duress (violation of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)40

Information about the measures to comply with the judgment in the case of

Harutyunyan against Armenia

      Introductory case summary

The case concerns a violation of the applicant’s right to a fair trial on account of the use during his trial of statements obtained from him and two witnesses under duress (violation of Article 6§1).

In April 1999 the applicant, who was in the army at that time, was accused of killing a soldier, found guilty of premeditated murder and sentenced to ten years’ imprisonment. The European Court noted that the applicant and the two witnesses had been coerced into making confessions, a fact confirmed by the domestic courts when the police officers concerned were convicted of ill-treatment. The Court concluded that, regardless of the impact the statements obtained under torture had had on the outcome of the applicant’s trial, the use of such evidence rendered his trial as a whole unfair.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

4000 EUR

-

4000 EUR

Paid on 25/10/2007

b) Individual measures

Individual measure in favour of the applicant

The applicant was detained from 17/04/1999 to 22/12/2003 and was released on parole.

On 25/12/2007, the applicant lodged a request for reopening with the Court of Cassation. In this process, the applicant’s lawyer had to challenge, before the Constitutional Court, the constitutionality of the provisions of the Code of Criminal Procedure concerning the reopening of proceedings. As a result, these provisions were amended on 26/12/2008.

Further to the adoption of these amendments, the applicant lodged a new request for reopening with the Court of Syunik Marz. After a number of adjournments because the applicant or his lawyer were not able to participate in the hearing, the hearing was held on 22/03/2010. The Court of Syunik Marz found Mr. Harutyunyan guilty of premeditated murder, sentenced him to ten years' imprisonment, but noted that he had already served this sentence. Thus the applicant remains free.

No other individual measure was considered necessary by the Committee of Ministers.

Measures of general impact adopted in the framework of this case to allow individual measure

Provisions on the reopening of criminal proceedings had to be modified. They now read as follows:

Article 426.4 of the Code of Criminal Procedure provides that “a judicial act may be reviewed after a final judgment or decision of an international court, the jurisdiction of which the Republic of Armenia has accepted, finding an infringement of a person’s rights protected by an international agreement to which Republic of Armenia is party".

An appeal for review of a judicial act on the grounds of a new circumstance may be submitted within three months following the notification to the persons concerned of the final judgment or decision of an international court the jurisdiction of which the Republic of Armenia has accepted (Article 426.4.3).

The following have the right to submit an appeal for review of judicial acts in the event of newly discovered or new circumstances, as provided under Article 426.2:

    (1) parties to the case to which the circumstance is related, except for criminal prosecution bodies;

    (2) those who, at the moment of the adoption by the Constitutional Court of the decision on the matter at issue, are in a position to exercise that right in accordance with the requirements (time-limits) of the Republic of Armenia Law “On the Constitutional Court” and the Convention, or who had been deprived of the possibility to have their case examined by the Constitutional Court by virtue of sections 3 or 5 of Article 32 of the said Law;

    (3) those who, at the moment of adoption of the relevant decision by an international court the jurisdiction of which the Republic of Armenia has accepted, have the right to appeal to the international court in accordance with the requirements (time-limits) of the relevant international agreement;

    (4) the Prosecutor General of the Republic of Armenia and his deputies.

According to Article 426.7.1, an application for review of a judicial act should contain the following information:

    (1) name, surname and residential or professional address and position,

    (2) the name of the court to which the appeal is addressed,

    (3) the date on which the judicial act to be reviewed was delivered,

    (4) description of the new circumstance,

    (5) the object of the applicant’s request,

    (6) the list of documents attached to the application,

    (7) signature of the applicant.

On the basis of newly discovered or new circumstance, a judicial act of the Court of first instance is reviewed by the Court of Appeal, a judicial act of the Court of Appeal and Court of Cassation is reviewed by the Court of Cassation (Article 426.1.2).

  

According to Article 426.8.3 the Court delivers the decision about refusal to initiate review proceedings within 10 days upon receiving an application. The decision about refusal to initiate review proceedings can be contested according to the respective regulation of the Code, i. e. Article 426.9 which states that a judicial act of the Court of Appeal can be contested before the Court of Cassation.

 

      II. General measures

The European Court’s judgment has been translated and published in the Official Bulletin of the Republic of Armenia No. 65 of 12/12/2007, on the official website of the Office of the Prosecutor of the Republic of Armenia (www.moj.am) as well as on the official website of the Prosecutor’s office of the Republic of Armenia (www.genproc.am), and on the official website of the Judiciary of the Republic of Armenia (www.court.am). The text of the judgment in Armenian has been sent to the Constitutional Court, the Court of Cassation, the Courts of Appeal, all first-instance courts of general jurisdiction, the Human Rights Defender’s Office, the Office of Public Prosecutor, the Police, the Standing Committee on State and Legal Affairs and the Standing Committee on Protection of Human Rights and Public Affairs of the National Assembly.

A study of the European Court of Human Rights case-law, and of the Harutyunyan case in particular, is included in the training curriculum of the Police Academy, the Prosecutors` School, and the Judicial School.

The Armenian Government expect that the case-law of the European Court of Human Rights will be taken into account by domestic authorities.

It has also to be recalled that Article 105 of the Code of Criminal Procedure, which concerns “facts inadmissible as evidence”, states that “in criminal procedure it is illegal to use as evidence or as a basis for an accusation facts obtained: by force, threat, fraud, violation of dignity, as well with the use of other illegal actions, (…) by violation of the investigatory or other essential court proceedings. (…) Any violation of the constitutional rights, freedom of a person and citizen, or of any requirements of this Code in the form of restriction or elimination of the rights guaranteed by law to the persons involved in the case, that influenced or could have influenced the reliability of the facts, shall be considered an essential violation in the process of obtaining evidence (…)”.

Conformity of judicial proceedings with Article 105 of the Code of Criminal Procedure is controlled by the domestic courts.

However, the government underlined that no similar case has had to be decided by the domestic courts since the European Court's judgment in the Harutyunyan case and that this is why no particular example of case-law can be mentioned concerning “facts obtained by force or threat”.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Armenia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)413

Execution of the judgments of the European Court of Human Rights

in 25 cases against Austria

(see Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final,

and following the Court’s finding of violations of the Convention in these cases;

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having further satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments,

      DECLARES, in the light of the above, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)41

Information on the judgments in 25 cases against Austria

Application No.

Judgment of

Final on

Decision

to close

I.H and others

(42780/98)

20/04/2006

20/07/2006

1007 meeting

September 2007

Kaplan

(45983/99)

18/01/2007

18/04/2007

1065 meeting

September 2009

Lanz

(24430/94)

31/01/2002

31/04/2002

863 meeting

December 2003

Loffelmann

(42967/98)

12/03/2009

12/06/2009

1078 meeting

March 2010

Gutl

(49686/99)

12/03/2009

12/06/2009

1078 meeting

March 2010

Lang

(28648/03)

19/03/2009

19/06/2009

1078 meeting

March 2010

Albert-Engelmann-Gesellschaft Mbh

(46389/99)

19/01/2006

19/06/2006

997 meeting

June 2007

Wirtschafts-Trend Zeitschriften Verlagsgesellschaft m.b.H (26113/95)

Report of the Commission transmitted to the Committee of Ministers on 18/05/1998

997 meeting

June 2007

Wirtschafts-Trend Zeitschriften-Verlags GmbH (No.2) (58547/00)

27/10/2005

27/01/2006

997 meeting

June 2007

Wirtschafts-Trend Zeitschriften-Verlags GmbH (No.3) (66298/01)

13/12/2005

13/03/2006

997 meeting

June 2007

Kobenter and Standard Verlags GmbH

(60899/00)

02/12/2006

02/02/2007

997 meeting

June 2007

Standard Verlags GmbH and Krawagna-Pfeifer (19710/02)

02/12/2006

02/02/2007

997 meeting

June 2007

Standard Verlags GmbH

(13071/03)

02/12/2006

02/02/2007

1051 meeting

March 2009

Verlagsgruppe News GmbH (No.1)

(76918/01)

14/12/2006

14/03/2007

997 meeting

June 2007

Verlagsgruppe News GmbH (No.2)

(10520/02)

14/12/2006

14/03/2007

997 meeting

June 2007

Ferihumer

(30547/03)

01/02/2007

01/05/2007

1007 meeting

September 2007

Nikowitz and Verlagsgruppe News GmbH

(5266/03)

22/02/2007

22/05/2007

1059 meeting

June 2009

Falter Zeitschriften GmbH

(26606/04)

22/02/2007

22/05/2007

1007 meeting

September 2007

Krone Verlag GmbH & CoKG (No.5)

(9605/03)

14/11/2008

14/02/2009

1059 meeting

June 2009

Vereinigung Bildender Künstler

(68354/01)

25/01/2007

25/04/2007

1100 meeting

December 2010

Osterreichischer Rundfunk

(35841/02)

07/12/2006

07/03/2007

997 meeting

June 2007

Eisenstecken

(29477/95)

03/10/2000

03/10/2000

871 meeting

February 2004

Coorplan-Jenni Gmbh and Hasci

(10523/02)

27/07/2006

11/12/2006

1007 meeting

September 2007

Jurisic and Collegium Mehrerau

(62539/00)

27/07/2006

11/12/2006

1007 meeting

September 2007

Kaya

(54698/00)

08/06/2006

08/09/2006

982 meeting

December 2006

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)424

Execution of the judgment of the European Court of Human Rights

P.B. and J.S. against Austria

(Application No. 18984/02, judgment of 22 July 2010, final on 22 October 2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns discrimination suffered by a same-sex couple due to the refusal to extend the health and accident insurance of the second applicant, a civil servant, to the first applicant, his co-habitating partner (violation of Article 14 in conjunction with Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

      DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)42

Information on the measures taken to comply with the judgment in the case of

P.B. and J.S. against Austria

      Introductory case summary

The case concerns discrimination (for the period until 30 June 2007) against a same-sex couple due to refusal to extend the health and accident insurance of the second applicant, a civil servant, to the first applicant, his co-habitating partner (violation of Article 14 in conjunction with Article 8).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

5000 EUR

10000 EUR

10000 EUR

25000 EUR

Paid on 18/01/2011

b) Individual measures

The individual measures are linked to the general measures in this case.

      II. General measures

An amendment was introduced to the Civil Servants's Sickness and Accident Insurance Act which entered into force on 1 July 2007. The amended version omitted the explicit reference to partners of the opposite sex in section 56(6a) and restricted the scope of application of section 56(6) to relatives. It is thus formulated in a neutral way no longer distinguishing between same-sex and different-sex couples. This was also confirmed by the European Court which considered that as of July 2007 the applicants were no longer subject to an unjustified difference in treatment as regards the benefit of extending health and accident insurance cover to the second applicant (paragraphs 45-50).

      III. Conclusions of the respondent state

The government considers that no individual measure is required, that the general measures adopted will prevent similar violations and that Austria has thus fulfilled its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)435

Execution of the judgment of the European Court of Human Rights

Capeau against Belgium

(Application No. 42914/98, judgment of 13 January 2005, final on 6 June 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the presumption of the applicant’s innocence in that the refusal in 1997 of his request for redress in respect of unduly served detention on remand was grounded on a legal provision of 1973 requiring persons involved in proceedings which had been discontinued, to prove their innocence in order to obtain redress (violation of Article 6, paragraph 2) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

      DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)43

Information on the measures taken to comply with the judgment in the case of

Capeau against Belgium

Introductory case summary

The case concerns a violation of the presumption of innocence in respect of the applicant (violation of Article 6, paragraph 2). In 1994, the applicant was remanded in custody for nearly a month in the context of an arson enquiry. The investigation was dropped and the applicant applied for reparation for prejudice sustained as a result of his detention on remand. His application was refused by the Ministry of Justice on 12 May 1997 and then at appeal by the Appeals Board on Unduly Served Detention (Commission d’appel en matière de détention préventive inopérante) on 1 December 1997, on the ground that the applicant had not adduced proof of his innocence as required by Article 28, paragraph 1b, of an Act of 13 March 1973 (§§ 15 and 16 of the judgment).

The European Court concluded that this requirement, though founded on a provision of law, gave rise to doubt as to the applicant’s innocence. It considered that to reverse the burden of proof in compensation proceedings brought in respect of an investigation which had been dropped, was incompatible with the presumption of innocence ((§ 25).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The Court awarded no just satisfaction.

b) Individual measures

The applicant made no request in respect of just satisfaction before the European Court, nor any request regarding individual measures before the Committee of Ministers.

II. General measures

The reasoning of the appeals Board criticised by the European Court derived from Article 28, paragraph 1b of the Act of 13 March 1973 on compensation for unwarranted detention on remand which required appellants “to establish their innocence by adducing factual evidence or submitting legal argument to that effect” in case of proceedings which have been discontinued.

Counting from the European Court’s judgment, the bodies concerned by proceedings for compensation for unwarranted detention on remand (the Ministry of Justice and first instance and the Appeals Board at appeal) no longer applied this requirement. The Belgian authorities provided copies of two decisions adopted by the Appeals Board on 22 March 2002 (261F) and 17 May 2005 (265F) in which the Board, referring to Article 6, paragraph 2, of the Convention, set aside the question of whether the appellants had adduced factual or legal elements to demonstrate their innocence, considering that in a conflict between a rule deriving from a treaty with direct effect in the Belgian legal order and a less favourable internal rule, the most favourable should prevail.

In addition, Article 8 of an Act adopted on 30 December 2009, which entered into force on 25 January 2010, deleted the requirement quoted above from Article 28, paragraph 1b of the 1973 Act.

III. Conclusions of the respondent state

The government considers that no individual measure is required, that the measures adopted will prevent similar violations and that Belgium has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)446

Execution of the judgment of the European Court of Human Rights

Suljagić against Bosnia and Herzegovina

(Application No. 27912/02, judgment of 03/11/2009, final on 03/02/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant's right to the peaceful enjoyment of his possessions ("old" foreign currency savings) due to the the deficient implementation of the domestic legislation (violation of Article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)44

Information about the measures to comply with the judgment in the case of

Suljagić against Bosnia and Herzegovina

      Introductory case summary

The case concerns the violation of the applicant's right to the peaceful enjoyment of his possessions as a result of the deficient implementation of the domestic legislation on “old” foreign currency savings (foreign currency savings deposited prior to the dissolution of the Socialist Federative Republic of Yugoslavia) (violation of Article 1 of Protocol No. 1).

The applicant deposited the foreign currency savings in a local bank prior to the dissolution of the former Yugoslavia. He was unable to withdraw his deposit from the bank when the war broke out in Bosnia and Herzegovina. However, the respondent state and its constituent entities assumed liability for “old” foreign currency savings. A special law envisaged that the debt in respect of “old” foreign currency savings, including the accrued interest, would be reimbursed through the issue of government bonds to the depositors and introduced a repayment scheme. These depositors had to obtain verification certificates beforehand to verify the amounts to be paid to them. They were entitled to a limited initial cash payment, while the remaining amount was to be reimbursed in government bonds. Those bonds are to be amortised in the Republika Srpska by 2013 and in the Federation of Bosnia and Herzegovina (the “Federation”) and the Brčko District by 2015. Those who are unable or unwilling to wait until the end of the amortisation period may opt for early cash payment by selling their bonds on the Stock Exchange.

This legislation was implemented without any problem in the Republika Srpska. However, in the Brčko District, government bonds, although due on 31/03/2008, were issued only on 30/06/2009. Likewise, in the Federation, it appears that bonds, also due on 31/03/2008, had not been issued when the Court rendered its judgment. As a result, the applicant was unable to sell them on the Stock Exchange and obtain early cash payments. Moreover, the instalments due under the current legislation on 27/09/2008 were paid almost three months later in the Brčko District and almost eight months later in the Federation. Similarly, the instalment due on 27/03/2009 was paid almost three months later in the Brčko District and had not been paid in the Federation. The Brčko District and the Republika Srpska also undertook to pay default interest in the event of late payment of any forthcoming instalment, while the Federation failed to do so.

Pilot-judgment” procedure

1) General measures to solve the problems at the basis of the repetitive violations: The Court noted that the violation in the present case affected many people. According to the International Monetary Fund, more than a quarter of the population of Bosnia and Herzegovina had “old” foreign-currency savings. Moreover, at the time this judgment was rendered, there were already more than 1350 similar applications, submitted on behalf of more than 13 500 applicants, pending before the Court. This represented a serious threat to the future effectiveness of the Convention machinery. The Court therefore considered it appropriate to apply the pilot-judgment procedure in the present case.

In view of the systemic situation which it had identified, the Court observed that general measures at national level were undoubtedly called for in execution of the present judgment. In particular, the Court considered that government bonds had to be issued and any outstanding instalments had to be paid in the Federation within six months from the date on which the present judgment became final. Within the same time-limit, the Federation undertook to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment. As regards the past delays, the Court did not find it necessary to order that adequate redress should be awarded to all persons affected. If, however, the respondent state were to fail to adopt the general measures indicated above and continued to violate the Convention, the Court might reconsider the issue of redress in an appropriate future case.

2) Regarding the similar applications pending before the Court: The Court decided to adjourn adversarial proceedings for six months from the date on which the present judgment became final in any cases pertaining to “old” foreign-currency savings in the Federation and the Brčko District in which the applicants have obtained verification certificates.

The Court also decided that it might declare inadmissible any cases pertaining to “old” foreign-currency savings in which the applicants have not obtained verification certificates, because it had found a violation of Article 1 of Protocol No. 1 only with respect to delays in the implementation of the current legislation, and those who have not obtained a verification certificate cannot be considered to be affected by those delays. However, the Court ordered that the respondent state must ensure that the relevant deadlines were extended for at least six months from the date on which the present judgment became final to enable everyone to obtain a verification certificate.

Lastly, the Court decided that it might declare inadmissible any cases pertaining to “old” foreign-currency savings in the Republika Srpska, even if the applicants have obtained verification certificates, because no delays in the implementation of the current legislation occurred in that Entity.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5000 EUR

729 EUR

5729 EUR

Paid on 06/04/2010

b) Individual measures

No other individual measure apart from the payment of just satisfaction was considered necessary by the Committee of Ministers.

      II. General measures

The authorities of Bosnia and Herzegovina have taken the following measures in order to execute this pilot judgment:

1) The Federation issued government bonds intended for the repayment of the “old” foreign currency savings, which have been covered by verification certificates. The Federation government took decisions ordering the first issue of those bonds on 21/10/2009 and the second issue on 24/03/2010. Those decisions have been published in the Federation Official Gazette, Nos. 67/2009 and 17/2010.

2) The Federation government also took a decision ordering the payment of the outstanding instalments due on 27/03/2009 and 27/09/2009. The decision was published in the Federation Official Gazette No. 17/2010. These instalments concerned the payment of interest on the bonds. The actual payment of the instalments took place on 16/07/2010.

3) The relevant deadlines have been extended to enable those who have not yet obtained a verification certificate in respect of their “old” foreign savings to obtain it. The deadline has been extended in Republika Srpska to 31/12/2010, in the Federation to 03/08/2010 and in the Brčko District to 15/10/2010. The respective decisions have been published in the official gazettes of both entities and the Brčko District.

4) On 29/04/2010 the Federation government adopted a decision to the effect that the Federation should pay default interest at the statutory rate in the event of late payment of any forthcoming instalment.

5) The Court’s judgment has been translated into all official languages of Bosnia and Herzegovina and published in the Official Gazette of Bosnia and Herzegovina No. 17/10 of 08/03/2010 and on the Internet page of the Government Agent (http://www.mhrr.gov.ba/ured_zastupnika/Default.aspx). The judgment was also forwarded to a number of relevant judicial and governmental authorities.

In view of the foregoing measures taken by the authorities of the respondent state, on 16/11/2010 the Court decided to close the pilot-judgment procedure applied in respect of the applications concerning “old” foreign currency savings in the present case (see decision in the case of Zadrić, Application No. 18804/04).

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Bosnia and Herzegovina has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)457

Execution of the judgment of the European Court of Human Rights

Šobota-Gajić against Bosnia and Herzegovina

(Application No. 27966/06, judgment of 06/11/2007, final on 06/02/2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant's right to respect for her family life due to the failure of the authorities to take all reasonable measures to facilitate her reunion with her son despite several domestic decisions in her favour (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures, preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)45

Information on the measures to comply with the judgment in the case of

Šobota-Gajić against Bosnia and Herzegovina

      Introductory case summary

The case concerns the violation of the applicant’s right to respect for her family life in that for six years the authorities failed to take all reasonable measures to facilitate her reunion with her son despite several domestic decisions in her favour (violation of Article 8).

The Social Care Centre granted the applicant provisional custody of her two children by virtue of an administrative order of 12/02/2003 while the divorce and custody proceedings were pending before court. The Social Care Centre gave this order in accordance with the 1979 Family Act, which was no longer in force at the material time. The applicant had taken her daughter with her even before the order was given but did not succeed in taking her son. The administrative order was executed nine months later and the applicant’s son was eventually handed over to her.

However, the applicant’s son was abducted by his father the day after the execution of the administrative order. No further steps could have been taken to enforce the administrative order because domestic law provided that such orders could only be executed once.

On 19/02/2003 the Gradiška Court of First Instance granted the applicant a divorce and custody over her son. That judgment became final only on 07/09/2004 and remained unexecuted. In the meantime, the criminal proceedings initiated against the child’s father for abduction remained at preliminary stage until his death on 14/01/2006.

On 31/03/2006, the Gradiška Minor Offences Court ordered the Social Care Centre to secure promptly, with police assistance if necessary, the return of the applicant’s son from his paternal grandmother, with whom he continued to live after the death of his father. This order was enforced only on 22/01/2007. The local police also refused to provide assistance despite the clear instruction given by the Gradiška Minor Offences Court to this effect.

The Court found in the circumstances of the present case that the national authorities had failed to take the necessary measures to facilitate the applicant’s reunion with her son.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

8800 EUR

4700 EUR

13500 EUR

Paid on 05/05/2008

b) Individual measures

The judgment awarding custody to the applicant was executed and she was reunited with her son on 22/01/2007. In addition, the Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

      II. General measures

The authorities of the respondent state have taken a number of measures aimed at preventing similar violations.

1) Legislative measures: The 2002 Family Act of Republika Srpska (the entity of the respondent state in which the events at issue took place) now authorises courts to give interim orders during the course of proceedings related to custody and maintenance. Consequently, social care centres are no longer authorised to give such orders.

The 2003 Enforcement Procedure Act of Republika Srpska provides that a child should be returned voluntarily by the person obliged to comply with an enforcement order within three days after the receipt of such decision. The domestic courts will impose fines if such decisions are not complied with. If necessary, the courts will also request assistance from the custody authorities. In any event, the courts have an obligation to protect the child’s interests during the enforcement of a custody order. As a last resort, the child will be taken forcibly if the fines imposed do not secure his or her return.

In cases where a child is abducted following the enforcement of a custody decision, the 2003 Enforcement Procedure Act of Republika Srpska provides for repeated enforcement of one and the same order, if less than 60 days have elapsed before the child has been abducted.

The abduction of a child also falls within the ambit of the 2005 Domestic Violence Act of Republika Srpska. When confronted with a situation similar to the facts of the present case, the police, public prosecutors, custody authorities and courts are now obliged to provide protection for the victims and to examine these cases as a matter of priority. Police officers are under an obligation to draw up a report presenting the facts of the case and send it within 24 hours to the competent public prosecutor and the Social Care Centre. In addition, public prosecutors are under an obligation to take the required steps without any delay and notify the competent court thereon. The competent court is obliged to make a decision without any delay, in any event not later than 3 days.

2) Publication and dissemination: The Court's judgment was published in the Official Gazette of Bosnia and Herzegovina and posted on the website of the Office of the Government Agent (www.mhrr.gov.ba/UredZastupnika). The Office of the Government Agent wrote to administrative bodies and courts involved in the present case and informed them of the violation found. This information was also sent to other authorities, including the Minister of Health and Social Security, the Office of the Legal Representative, the Prime Minister in Republika Srpska, the Prime Minister in the Federation of Bosnia and Herzegovina and the Constitutional Court and the Chairman of the Council of Ministers in Bosnia and Herzegovina.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Bosnia and Herzegovina has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)468

Execution of the judgments of the European Court of Human Rights

United Macedonian Organisation Ilinden and Ivanov and Ivanov and others against Bulgaria

(Application No. 44079/98, judgment of 20/10/2005, final on 15/02/2006

Application No. 46336/99, judgment of 24/11/2005, final on 24/02/2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the infringement of the freedom of assembly of organisations which aim to achieve “the recognition of the Macedonian minority in Bulgaria” due to prohibitions of their meetings between 1998 and 2003 (violation of Article 11) and the lack of effective remedies to complain against these prohibitions (violation of Article 13) (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

Having noted that two other applications presently pending before the European Court concern allegations relating to bans or to the holding of certain meetings of the applicants initially scheduled between March 2004 and September 2009;

Having considered, without prejudging the judgment the Court could deliver in respect of these applications, that in view of the positive trend observed concerning the holding of the applicants’ meetings in particular since 2008 and the absence of complaints from them as regards 2010, no further individual measure seemed required in these cases;

Having also examined the general measures and in particular the awareness-raising measures taken by the Bulgarian authorities to ensure that applicable domestic law is interpreted in conformity with the Convention and thus to prevent violations similar to that found by the European Court (see details in Appendix);

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)46

Information on the measures taken to comply with the judgments in the cases of

United Macedonian Organisation Ilinden and Ivanov and Ivanov and others against Bulgaria

      Introductory case summary

These cases relate to the unjustified prohibition by the authorities of a number of commemorative meetings between 1998 and 2003 in south-west Bulgaria and in Sofia (violations of Article 11).

The European Court noted with concern that one of the prohibitions was imposed in 2003 on grounds, which had been previously declared contrary to the Convention in the case of Stankov and United Macedonian Organisation Ilinden (hereafter “UMO Ilinden”) against Bulgaria (judgment of 02/10/2001). The European Court also observed that on one occasion the authorities appeared somewhat reluctant to take all appropriate measures to prevent violent acts directed against the participants in Ilinden's rally. The case of Ivanov and others also relates to the lack of an effective remedy at the applicants' disposal to complain against the prohibitions of their meetings (violation of Article 13).

The European Court referred to its case-law according to which grounds such as threat of disruption of the public order or danger for the territorial integrity and the security of the country could not justify restrictions to the freedom of assembly when there is no real foreseeable risk of violent action and the initiators of the meeting in question had not hinted at any intention to use violence or other undemocratic means to achieve their aims (see also the judgment Stankov and UMO Ilinden, cited above). The Court also noted that the risk that some of the participants in the rallies of Ilinden might broadcast separatist slogans could not itself justify their banning.

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

UMO Ilinden and Ivanov

(44079/98)

 

6 000 EUR

800 EUR

6 800 EUR

Paid on 12/05/2006

Ivanov and others

46336/99

   

2 000 EUR

2 000 EUR

Paid on 18/05/2006

b) Individual measures

1) Meetings in 2006-2008: The Bulgarian authorities informed the Committee of Ministers that in 2006 only 2 out of 10 requests for organisation of meetings had been rejected. They consider that the two requests in question were rejected on grounds which are compatible with the requirements of the Convention. The police ensured the security of the participants and the public order at the authorised meetings.

In 2007, the applicants complained before the Committee of the ban by the Governor of the Blagoevgrad region of a commemorative meeting they organised for 22/04/2007. The Committee noted this ban with concern as it was based on grounds already incriminated by the European Court, but noted in this respect with satisfaction that the meeting in question had nevertheless taken place, in particular following the intervention of the Government Agent (see the decision adopted by the Committee at the 997th meeting, June 2007). However, the applicants disputed the fact that meeting in question had taken place, claiming that they had encountered various problems related to the transportation of the participants, complaining of the behaviour of the police and the fact that they had not been authorised to carry out certain actions (play music, make speeches, lay wreaths or raise flags). They lodged a new application with the European Court with regard to these facts (application No. 48284/07, the statement of facts is available on Hudoc).

2) Meetings in 2008-2010: In 2008, the Bulgarian authorities indicated that the United Macedonian Organisation Ilinden – PIRIN (hereafter “UMO Ilinden – PIRIN”) had declared itself satisfied, in certain publications on its website, with the organisation of two commemorative meetings which took place in April and in May 2008. The authorities specified that the presence of a great number of police officers, which was criticised by the applicants, was necessary to ensure the protection of the participants in these meetings against possible violent counter-demonstrations. The authorities observed that the absence of such a protection was criticised by the European Court in the judgment in UMO Ilinden and Ivanov (see §115 of the judgment).

The Bulgarian authorities submitted further information indicating that more than 20 officially notified events organised by UMO Ilinden and UMO Ilinden – PIRIN took place during the period 01/01/2009 -15/08/2010. Only two events were not authorised during this period (in May and in September 2009), according to the authorities on grounds which are compatible with the Convention. In addition, the authorities specified that, even though the municipalities were not informed of a certain number of other events, the applicants were not prevented from proceeding with their organisation.

They indicated that the second application currently pending before the European Court (see application No. 37586/04, the statement of facts is available on Hudoc) concerns alleged bans or the manner in which the applicants’ meetings took place between March 2004 and September 2009 and that no complaint had been submitted by the applicants before the Committee since 2007.

In addition, the authorities consider that the awareness-raising measures described below, as well as the measures concerning the effectiveness of the domestic remedies in the field of freedom of peaceful meetings are also expected to further consolidate the positive trend already observed as regards the applicants’ meetings.

      II. General measures

1) Organisation of peaceful meetings: The authorities recalled that following the judgment in Stankov and UMO Ilinden of 2001 (Final Resolution ResDH(2004)78), a copy of the judgment translated into Bulgarian and accompanied by a circular letter was sent to the mayors of the towns of Petrich and Sandanski, directly concerned by this case. As the violations found in the present cases also concern other towns, the judgments of the European Court were also sent to the mayors of Sofia and Blagoevgrad, to draw their attention to the requirements of the Convention and to ensure that domestic law is interpreted in conformity with it.

The judgments were also sent to the district courts of the cities cited above, as well as to the competent prosecutors and to the directors of the National Security Service, of the Police Directorate of Sofia and of the Directorate of the Interior of Blagoevgrad. The dissemination of the judgments in these cases was made by a letter drawing the authorities' attention to the main conclusion of the European Court in these cases, as well as to the fact that this communication was made within the framework of the adoption of the general measures for the execution of the European Court's judgments.

In addition, following the present judgments, several training activities have been organised. A seminar for judges and prosecutors on freedom of association and assembly with the participation of the Council of Europe was organised by the National Institute of Justice in October 2007. Another seminar on this subject, for judges, prosecutors, representatives of the Ombudsman's Office, lawyers and NGOs was organised in December 2007 by the Ministry of Justice and the Department for execution of judgments. Yet another training activity for mayors and police chiefs took place in May 2008. Another seminar for judges and prosecutors was organised by the National Institute of Justice in June 2008. In October 2008 a group of judges from the Supreme Court of Cassation, of prosecutors and of representatives of the Government Agent's Office paid a study visit to the Council of Europe during which they participated in a working seminar.

The government undertook to continue to organise awareness-raising activities in the field of application of Article 11 of the Convention (see final resolution CM/ResDH(2009)120 adopted in the case of UMO Ilinden-PIRIN and others against Bulgaria).

2) Effective remedies: The violation found by the European Court was due to the fact that according to the Meetings and Marches Act as it stood at the relevant time, the mayoral ban of a meeting was appealable before a body that no longer existed (the Executive Committee of the People's Council). The Act was amended in 2010 and the relevant provisions entered into force in March 2010. According to the amended provisions, organisers of meetings and demonstrations to take place outdoors must inform the mayor of the district concerned 48 hours in advance. The mayor may ban a meeting for the reasons set out in the law, no later that 24 hours after the notification by the organisers. The mayor's decision may be appealed before the competent administrative court, which must give its decision, which is final, within 24 hours.

Thus, the 2010 amendments to the Meeting and Marches Act removed the reference to a review body that had ceased to exist, which was creating confusion as to the procedure to be followed.

      III. Conclusions of the respondent state

The government considers that the measures adopted have put an end to the violations founds by the European Court in these cases, that these measures will prevent similar violations and that Bulgaria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)479

Execution of the judgment of the European Court of Human Rights

Buj against Croatia

(Application No. 24661/02, judgment of 01/06/2006, final on 01/09/2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the excessive length of land registry proceedings and lack of effective remedy in this respect (violations of Articles 6, paragraphs 1 and 13) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)47

Information about the measures to comply with the judgment in the case of

Buj against Croatia

      Introductory case summary

This case relates to the excessive length of civil proceedings concerning the registration of the applicant's title in the land registry (violation of Article 6, paragraph 1). Proceedings began in May 2002 and were still pending when the Court delivered its judgment. The case also concerns the lack of an effective remedy against the excessive length of land registry proceedings (violation of Article 13).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2400 EUR

-

2400 EUR

Paid on 09/10/2006

b) Individual measures

The proceedings were concluded by the decision of the Stari Grad Municipal Court, which recorded the applicant's title in the land register on 27/06/2006. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

In order to prevent similar violations, the Croatian authorities took a number of different measures.

1) Reform of land registry proceedings: In order to reduce excessive length of land registry proceedings, the Croatian authorities implemented a reform of the land registration system. This reform aimed at: (i) decreasing the number of pending land registry cases, (ii) shortening overall duration of proceedings in land registry cases in accordance with the “reasonable time” requirement and (iii) transferring all registry data on mortgage and ownership rights into electronic form.

As far as the reduction of the number of pending land registry cases is concerned, the number of these cases has been continuously decreasing. In this regard, it should be noted that in the first quarter of 2007 there were 146 085 unsolved land registry cases in Croatia, which makes 47 970 less cases than at the relevant time in 2006. This number decreased to 109 379 unresolved cases in September 2008.

As far as the reduction of the length of land registry proceedings is concerned, in 2007 and 2008 the overall length of mortgage registration proceedings was 7 days. As regards the proceedings for title registration, their overall duration was 63 days in 2007 and 78 days in 2008.

As far as the transfer of registry data is concerned, in May 2007, 99,17% of the data had been transferred to electronic form. It should be also noted that all application forms for initiation of registry proceedings are available in electronic form on the Internet.

2) Effective remedy against length of proceedings: When the Court rendered its judgment the constitutional complaint against the excessive length of judicial proceedings introduced in 2002 was not applicable to land registry proceedings. However, this case-law has been changed subsequently. It is now possible to bring a complaint against the excessive length of land registry proceedings before the Constitutional Court.

3) Publication and dissemination: The Court’s judgment has been translated into Croatian and sent out to the Supreme Court and other courts dealing with the case. The translation is also available at the internet site of the Ministry of Justice (www.mprh.hr) and is published in a periodical publication on case-law of the Court.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Croatia have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)4810

Execution of the judgments of the European Court of Human Rights

Ćosić and Paulić against Croatia

(Application No. 28261/06 and 3572/06, judgments of 15/01/2009 final on 05/06/2009

and 22/10/2009, final on 01/03/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern disproportionate interference with the applicants' right to respect for their home in that the domestic courts ordered them to vacate flats owned by the state, in breach of any procedural safeguards in proceedings for their eviction (violations of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant in the case of Ćosić the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)48

Information on the measures taken to comply with the judgments in the cases of

Ćosić and Paulić against Croatia

      Introductory case summary

These cases concern disproportionate interference with the applicants' right to respect for their home in that the domestic courts ordered them to vacate flats owned by the state, in breach of any procedural safeguards in proceedings for their eviction (violations of Article 8).

The Court noted that the domestic courts' findings were limited to the conclusion that under the applicable law the applicants had lost all legal entitlement to occupy the flats and that they therefore had to vacate them. While recognising the applicants' difficult situation, the domestic courts thus failed to analyse the proportionality of the measure to be applied against the applicants despite their duty not to interpret or apply the provisions of domestic law in a manner incompatible with the obligations flowing from the Convention.

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Ćosić No. 28261/06

-

2000 EUR

369.97 EUR

2369.97 EUR

Paid on 24/07/2009

b) Individual measures

In the Ćosić case, the Ministry of Defence decided not to institute enforcement proceedings to compel the applicant to vacate her flat. Under a decision on the sale of flats owned by the Republic of Croatia and managed by the Ministry of Defence adopted by the government on 02/04/2009 (published in the Official Gazette, No. 43/09), the applicant could apply to buy the flat at issue at the latest by 08/04/2010, thus enjoying a right of pre-emption.

In the Paulić case, the applicant submitted no claim for just satisfaction. The authorities withdrew their enforcement motion in this case.

The Municipal Court in Požega subsequently terminated the eviction proceedings on 30/11/2010. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

In order to prevent similar violations, on 22/12/2010 the Croatian Constitutional Court rendered a binding decision (No. U-III-46/2007) and found expressis verbis that any interference with the right to peaceful enjoyment of possession should comply with the principles of rule of law, public interest and proportionality. In this respect, the Constitutional Court stressed the obligation of domestic courts to implement the Convention. Since this change of case-law is binding on all courts in the country, it is expected that this measure should be adequate to prevent similar violations.

In view of the direct effect of the Convention in Croatia, publication of the Court’s judgments and their dissemination to the relevant courts should contribute to preventing similar violations. In this context it should be noted that the Court's judgments have been translated into Croatian and published on the website of the Ministry of Justice (www.mprh.hr). They have been sent out to the Constitutional Court, Supreme Court, Ministry of Defence and to the domestic courts involved in the cases. The judgments are also published in a journal concerning the Court's case-law.

    III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Croatia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)4911

Execution of the judgment of the European Court of Human Rights

Gabrić against Croatia

(Application No. 9702/04, judgment of 05/02/2009, final on 05/05/2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant’s right to the peaceful enjoyment of her possessions due to the confiscation by custom authorities of undeclared foreign currency and the imposition of a fine during a border control (violation of Article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)49

Information about the measures to comply with the judgment in the case of

Gabrić against Croatia

      Introductory case summary

The case concerns a disproportionate interference with the applicant's right to peaceful enjoyment of her possessions in that the customs authorities, during a border control in January 2002, in addition to fining her for failing to declare foreign currency in her possession, confiscated the sums concerned (violation of Article 1 of Protocol No. 1).

The Court considered the fine to have been a sufficient sanction to prevent future breaches of the national legal requirement to declare currency carried across borders.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

10000 EUR

-

1850 EUR

11850 EUR

Paid on 10/06/2009

b) Individual measures

The Court awarded the applicant just satisfaction in respect of pecuniary damage, in particular concerning the amount confiscated in breach of the Convention. As regards non-pecuniary damage, the Court considered that finding of a violation of Article 1 of Protocol No. 1 to the Convention constituted in itself sufficient just satisfaction in the circumstances of the case. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

In order to prevent similar violations, the Croatian authorities have taken a number of measures.

1) Legislative measures included adoption of a new law on preventing money laundering and financing terrorism, which came into force on 01/09/2009. Pursuant to this law, individuals have an obligation to declare at the border customs control any transfer of cash amounting to at least 10 000 EUR. In this regard, the amount of cash not subject to customs declaration has been roughly doubled in comparison with the rules in force at the time when the facts of this case took place.

2) Change of case law: Following to the Court’s judgment in this case, the High Misdemeanor Court has changed its case-law, in particular concerning the application of the Law on Preventing Money Laundering and Financing Terrorism. At its session held on 03/06/2009, the High Misdemeanor Court determined that the confiscation of undeclared cash carried over the border should no longer be applied in similar cases, if the purpose of punishment could be achieved solely by fining the offender. The relevant administrative authorities have been notified on the new case-law.

3) Change of administrative practice intervened after the High Misdemeanor Court changed its case-law. In this regard, it should be noted that since the Court’s judgment the administrative authorities have not applied any measure of confiscation in respect of undeclared cash transferred over the border.

4) Publication and dissemination: In view of the direct effect of the Convention in Croatia, publication of the Court’s judgment and its dissemination to the relevant courts should also facilitate the prevention of similar violations. In this context it should be noted that the Court’s judgment has been translated into Croatian and sent out to the Constitutional Court, the Supreme Court, High Misdemeanor Court and the Ministry of Finance. It is also available on the Internet site of the Ministry of Justice (www.mprh.hr) and published in a periodic on the case-law of the Court.

      III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Croatia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5012

Execution of the judgment of the European Court of Human Rights

Kovač against Croatia

(Application No. 503/05, judgment of 12/07/2007, final on 12/10/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the right to a fair trial in that the applicant had not been given the opportunity to challenge a witness statement which was of decisive importance for his conviction (violation of Article 6, paragraph 1, taken together with Article 6, paragraph 3 (d)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)50

Information on the measures taken to comply with the judgment in the case of

Kovač against Croatia

      Introductory case summary

This case concerns the violation of the right to a fair trial in that the applicant had not been given the opportunity to challenge a witness statement, which was of decisive importance for his conviction in criminal proceedings brought against him for sexual abuse of a child in 2002 (violation of Article 6, paragraph 1, taken together with Article 6, paragraph 3 (d)).

The Court noted that the statement made by the alleged victim to the investigating judge was not recorded or videotaped, so that neither the applicant nor the trial court judges were able to observe the girl’s behaviour during questioning and thus form their own impression of her reliability. The applicant was not at any stage of the proceedings provided with an opportunity to have questions put to the alleged victim or to contest her statement. The trial court did not undertake a careful examination of the statement taken from her since this statement was not read before the trial court with or without the applicant being present. Finally, the domestic courts disregarded the applicant’s contention that he had not been given an opportunity to question the alleged victim.

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1000 EUR

4000 EUR

5000 EUR

Paid on 19/11/2007

b) Individual measures

The criminal proceedings at issue were reopened in 2007. In the new proceedings a first-instance court heard the applicant’s arguments, examined the new evidence which was presented and re-examined the evidence already presented at the first trial. In particular, it should be stressed that the testimony of the alleged victim was heard and the applicant was able to ask her questions. The new criminal proceedings were closed with a final judgment of 7/02/2008. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

It seems that the existing legal framework provides sufficient safeguards in such situations and that the violation was of an isolated character resulting from a wrongful application of the law. According to Croatian law, as referred to in the judgment of the Court, the investigating judge shall order the video recording of testimony given by a child who is a victim of an offence. If the parties to the proceedings are not present during the examination of the child, either during the investigation or at the court hearing, they may ask questions through the investigating judge, psychologist, counsellor or other qualified person (Articles 248 (5) and 346 (3) of the Code of Criminal Procedure). When a child or a younger minor has been questioned in such manner, his or her statement shall always be read out or the recording of the testimony viewed at the court hearing (Article 119 (4) of the Juvenile Courts Act).

In view of the direct effect of the Convention in Croatia, the publication of the Court’s judgment and its dissemination to the relevant courts should be sufficient to prevent similar violations. In this context it should be noted that the Court’s judgment has been translated into Croatian and sent out to the Constitutional Court, the Supreme Court and to the courts involved in this case. It is also available on the Internet site of the Ministry of Justice (www.mprh.hr).

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Croatia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5113

Execution of the judgment of the European Court of Human Rights

Prežec against Croatia

(Application No. 48185/07, judgment of 15/10/2009, final on 15/01/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant's right to a fair trial due to the authorities' failure to grant the applicant free legal assistance at the trial stage in criminal proceedings against him and failure of the counsel assigned to the applicant at the appeal stage to contact him and become acquainted with his version of the facts (violation of Article 6, paragraphs 1 and 3 (c)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)51

Information about the measures to comply with the judgment in the case of

Prežec against Croatia

      Introductory case summary

The case concerns the violation of the applicant's right to a fair trial in that in 2004 he had not been granted free legal assistance at the trial stage in criminal proceedings against him and in that the counsel assigned to him at the appeal stage had not contacted him (violation of Article 6, paragraphs 1 and 3(c)).

The Court noted that the applicant's mental state and the fact that as a convicted prisoner he had been charged with an offence against a prison employee warranted his legal representation in the proceedings at issue. The Court also observed that in view of the fact that the counsel assigned to the applicant at the appeal stage had never contacted him, the counsel could hardly have been acquainted with the applicant's version of events. The representation by a legal-aid lawyer during the appeal proceedings did not satisfy the requirements of a fair trial.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

100 EUR

100 EUR

Paid on 22/02/2010

b) Individual measures

The Court considered that the finding of a violation of Article 6, paragraphs 1 and 3(c) of the Convention together with the possibility open to the applicant under national law to seek a fresh trial (Article 430 of the Croatian Code of Criminal Procedure) constituted in itself just satisfaction in the circumstances of the present case. In this respect, it is noted that on 10/09/2009, the Supreme Court quashed the judgment at issue and ordered a retrial in this case. In doing so, the Supreme Court noted that the Pula Municipal Court had failed to acknowledge the existence of special circumstances, which required that a counsel be appointed to the applicant at the trial stage of the proceedings. However, on 08/12/2009, the Pula Municipal Court discontinued the proceedings due to the statute of limitation. In this regard, no further criminal proceedings could be conducted against the applicant in respect of the same offence. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

It seems that this was an isolated violation resulting from the particular circumstances of the case. In view of the direct effect of the Convention in Croatia, publication of the Court’s judgment and its dissemination to the relevant courts should be sufficient to prevent similar violations. In this context it should be noted that the Court’s judgment has been translated into Croatian and sent out to the Constitutional Court, the Supreme Court and to the courts involved in this case. It is also available on the Internet site of the Ministry of Justice (www.mprh.hr).

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Croatia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5214

Execution of the judgments of the European Court of Human Rights

Vajagić against Croatia

(Application No. 30431/03, judgments of 20/07/2006, final on 11/12/2006

and of 16/10/2008, final on 16/01/2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in this case concern the authorities’ failure to provide compensation for the applicants’ expropriated property and lack of an effective remedy in this respect (violations of Article 1 of Protocol No. 1 and Article 13) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)52

Information about the measures to comply with the judgment in the case of

Vajagić against Croatia

      Introductory case summary

The case concerns the failure of the authorities to decide on the amount of compensation to which the applicants were entitled under domestic law for the expropriation in 1976 of certain of their properties (violation of Article 1 of Protocol No. 1). The Court noted that most of the delays were caused by the successive remittals which disclosed a deficiency in the procedural system.

The case also concerns the lack of an effective remedy under domestic law which would have enabled the applicants to obtain a decision determining the amount of their compensation (violation of Article 13). The Court noted in this respect that the constitutional complaint against the excessive length of judicial proceedings introduced in Croatia in 2002 was not applicable to proceedings before administrative organs.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

11000 EUR

8000 EUR

1630 EUR

19630 EUR

Paid on 25/03/2009

b) Individual measures

The proceedings challenged in this judgment were still pending when the Court delivered its judgment. However, the applicants subsequently withdrew their claim and the Virovitica County Court discontinued the proceedings on 15/02/2010. The Court awarded the applicants just satisfaction corresponding to the difference between the value of their property and the compensation they had obtained at national level by the decision of the Ministry of Justice of 19/05/2006. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

In order to prevent similar violations, the Croatian authorities have taken a number of measures:

1) Concerning the violation of Article 1 of Protocol No. 1: The Court noted in its judgment that the new Expropriation Act of 1994 provided that the decision on compensation should be given at the same time as the actual expropriation took place. Moreover, if there are still cases similar to that of the applicants, they should be settled with the introduction of an effective remedy against the excessive length of this kind of proceedings (see below).

Following to the Court’s judgment in this case, the administrative authorities have also been informed in writing of the need to conclude any similar proceedings concerning expropriation compensation as soon as possible. In the case of successive remittals, the second-instance body would apply the new case-law and award an advance payment to the party concerned pending the final resolution of the issue.

2) Concerning violation of Article 13: The necessary measures have been taken in the framework of the case of Počuča (Application no. 38550/02).

3) Publication and dissemination: The Court’s judgment was published on the website of the Ministry of Justice (www.mprh.hr). It was sent to the Constitutional Court, Supreme Court, State Administration Office in Virovitica County and Civil Law Directorate of the Ministry of Justice.

      III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction and that the general measures adopted will prevent similar violations and that Croatia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5315

Execution of the judgment of the European Court of Human Rights

Vrbica against Croatia

(Application No. 32540/05, judgment of 01/04/2010, final on 01/07/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern unlawful interference with the applicant's right to peaceful enjoyment of his property and the violation of his right to access to a court resulting from the wrongful refusal of the domestic court to enforce a foreign judgment because the ten-year limit for seeking enforcement had expired (violations of Article 1 of Protocol No. 1 and Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)53

Information about the measures to comply with the judgment in the case of

Vrbica against Croatia

      Introductory case summary

The case concerns the unlawful interference with the applicant's right to peaceful enjoyment of his property and the violation of his right to access to a court resulting from the refusal of the Koprivnica Municipal Court on 08/06/2004 to enforce a foreign judgment of 15/10/1991, which had been recognised in Croatia on 20/11/2001, on the ground that the ten-year limit for seeking enforcement had expired (violations of Article 1, Protocol No. 1, and Article 6, paragraph 1).

The Court found that the view of the domestic courts that instituting proceedings for recognition of a foreign judgment on 16/10/2001 did not interrupt the running of a statutory limitation period was untenable. It noted that the manner in which the Koprivnica Municipal Court interpreted and applied the relevant domestic law had not been foreseeable for the applicant, who could have reasonably expected that instituting proceedings for recognition of a foreign judgment would suspend the statutory limitation period.

The Court also noted that the judgment of the Koprivnica Municipal Court had not been in line with the established case-law of the Croatian Supreme Court and held that, in these circumstances, the refusal of the domestic courts to allow the enforcement of a recognised foreign judgment infringed the principle of proportionality and thus impaired the very essence of the applicant's right to access to a court.

      I. Individual measures

The Court considered that the most appropriate way of redress would be to reopen the proceedings complained of in due course. In this respect, the Court noted that the applicant might file a reopening petition under Article 428a of the Civil Procedure Code. The proceedings have been reopened upon the applicant’s request. On 19/11/2010, the Municipal Court of Koprivnica rendered a judgment in the reopened proceedings and applied directly the Court’s case-law. The Municipal Court of Koprivnica considered therefore that the running of the statute of limitation in respect of the foreign award in this particular case has been interrupted. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

It seems that this was an isolated violation resulting from the misapplication of the domestic law in this case. In view of the direct effect of the Convention in Croatia, publication of the Court’s judgment and its dissemination to the relevant courts should be sufficient to prevent similar violations. In this context it should be noted that the Court’s judgment has been translated into Croatian and sent out to the Constitutional Court, the Supreme Court and to the courts involved in this case. It is also available on the Internet site of the Ministry of Justice (www.mprh.hr) and published in a periodic on the Court’s case-law.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Croatia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5416

Execution of the judgments of the European Court of Human Rights

Serghides and Christoforou against Cyprus

(Application No. 44730/98, judgment of 5 November 2002, final on 5 February 2003,

and of 10 June 2003, final on 24 September 2003 (just satisfaction))

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in this case only concern Ms Serghides’s complaints, namely: the privation of the applicant of her land without compensation (violation of Article 1 of Protocol No. 1), the excessive length of proceedings before the Supreme Court (violation of Article 6, paragraph 1) and the violation of the applicants’ right of access to a court in order to determine the lawfulness of the action complained of (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)54

Information on the measures to comply with the judgments in the case of

Serghides and Christoforou against Cyprus

      Introductory case summary

This case concerns the expropriation, in 1979, of part of the first applicant’s land without compensation following a street-widening scheme of the Municipality of Nicosia (violation of Article 1 of Protocol No. 1). The case also concerns two violations of Article 6, paragraph 1, related to the excessive length of proceedings before the Supreme Court, from November 1989 to February 1998, before two levels of jurisdiction; and the violation of the applicant’s right of access to a court in order to determine the lawfulness of the action complained of. At first instance the Supreme Court dismissed the applicant’s claim as being out of time even though she had never received notification of the expropriation of her land. Furthermore, the same court dismissed her appeal having found that she had no locus standi on the grounds that the applicant had donated the disputed property to her children.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

60000 EUR

12000 EUR

20000 EUR

92000 EUR

Paid on 18/12/2003

b) Individual measures

The European Court awarded just satisfaction in respect of the pecuniary and non-pecuniary damage sustained in the case and a sum awarded for the expenses incurred during the process. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

As regards violations of Article 6, paragraph 1, first of all, a series of circulars of the Supreme Court covering the years 1995-2003 facilitated the acceleration of proceedings in all national courts; the average length of proceedings before the Supreme Court in administrative cases is now approximately one year. These circulars are binding on the judicial authorities and non-compliance with them may entail disciplinary sanctions. This issue is examined in the context of the Gregoriou group (Application No. 62242/00, and 24 other cases).

Secondly, in relation to the right to effective access to a court, the direct effect of the European Convention in Cypriot law ensures conformity with the Convention (see Supreme Court judgment in the case of Archangelos Domain against Van Nievelt, Contain (1998) 1 CLR 51).

As regards the violation of Article 1, Protocol No. 1, as a result of the 2001 Supreme Court case of Catheleen Georgallides and others against A-G (Civil Appeal 10695, 27 March 2001), it has been established in Cypriot law that every individual has the right to reasonable compensation in cases of expropriation, irrespective of the method of expropriation.

The judgment of the European Court has been translated and published at the site of the Cyprus bar Association (www.cyprusbarassociation.org)

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Cyprus has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5517

Execution of the judgment of the European Court of Human Rights

Pešková against Czech Republic

(Application No. 22186/03, judgment of 26/11/2009, final on 26/02/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the absence of adequate compensation for the privation of property acquired under the communist regime (violation of article 1 of Protocol 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)55

Information about the measures to comply with the judgment in the case of

Pešková against Czech Republic

      Introductory case summary

This case concerns the absence of adequate and reasonable compensation for the privation in 2001 of property acquired under the communist regime (violation of Article 1 of Protocol No. 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

30000 EUR

-

240 EUR

30240 EUR

Paid on 21 May 2010

b) Individual measures

The European Court awarded the applicants just satisfaction in respect of pecuniary damage. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

See Final Resolution CM/ResDH(2007)30 adopted in the cases of Pincová and Pinc and Zvolský and Zvolská against the Czech Republic.

      III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that the Czech Republic has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5618

Execution of the judgments of the European Court of Human Rights

in 4 cases against Finland

(see Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final, and following the Court’s finding of violations of the Convention in these cases;

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having further satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments,

      DECLARES, in the light of the above that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)56

Information on the judgments in 4 cases against Finland

Cases under examination

Application No.

Case name

Date of judgment

Date of final judgment

41673/98

BRUNCRONA

25/04/2006

25/07/2006 - 997 meeting (June 2007)

10163/02

JOHANSSON

06/09/2007

06/12/2007 - 1092 meeting (September 2010)

20511/03

I

17/07/2008

17/10/2008 - 1059 meeting (June 2009)

2872/02

K.U.

02/12/2008

02/03/2009 - 1065 meeting (September 2009)

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5719

Execution of the judgments of the European Court of Human Rights

Paturel, Giniewski, Brasilier, Dupuis et autres, Desjardin, Chalabi, Brunet-Lecomte et Sarl Lyon Mag’, Orban et autres, Brunet-Lecomte et Tanant, Brunet-Lecomte et Lyon Mag’, Haguenauer against France

(Paturel, Application No. 54968/00, judgment of 22/12/2005, final on 22/03/2006)

(Giniewski, Application No. 64016/00, judgment of 31/01/2006, final on 01/05/2006)

(Brasilier, Application No. 71343/01, judgment of 11/04/2006, final on 11/07/2006)

(Dupuis and others, Application No. 1914/02, judgment of 07/06/2007, final on 12/11/2007)

(Desjardin, Application No. 22567/03, judgment of 22/11/2007, final on 22/02/2008)

(Chalabi (Application No. 35916/04, judgment of 18/09/2008, final on 18/12/2008)

(Brunet-Lecomte and Sarl Lyon Mag’, Application No. 13327/04, judgment of 20/11/2008, final on 20/02/2009)

(Orban and others, Application No. 20985/05, judgment of 15/01/2009, final on 15/04/2009)

(Brunet-Lecomte and Tanant, Application No. 12662/06, judgment of 08/10/2009, final on 08/01/2010)

(Brunet-Lecomte and Lyon Mag’, Application No. 17265/05, judgment of 06/05/2010, final on 06/08/2010)

(Haguenauer, Application No. 34050/05, judgment of 22/04/2010, final on 22/07/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the breach of the applicants' right to freedom of expression (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)57

Information on the measures taken to comply with the judgments in the cases of Paturel, Giniewski, Brasilier, Dupuis et autres, Desjardin, Chalabi, Brunet-Lecomte et Sarl Lyon Mag’, Orban et autres, Brunet-Lecomte et Tanant, Brunet-Lecomte et Lyon Mag’, Haguenauer against France

      Introductory case summary

These cases concern the breach of the applicants’ right to freedom of expression due to convictions or findings against them in proceedings for defamation, for condoning or complicity in condoning war crimes, or for violating the secrecy of judicial investigation or professional secrecy (violations of Article 10).

Civil or criminal convictions were delivered against the applicants on the basis of extracts from books published by them (Paturel, Dupuis and others, Orban and others), pamphlets and banners used in the context of election campaigns (Brasilier and Desjardin), articles that they had published (Chalabi, Giniewski, Brunet-Lecomte and Tanant and the two cases of Brunet-Lecomte and SARL Lyon-Mag) or comments they had made (Haguenauer).

In these cases, the Court found that the interference of the public authorities with the applicants’ right to freedom of expression, at the basis of the findings at issue, was provided by law and pursued a legitimate aim. The Court recalled that in determining the existence of a “pressing social need” justifying the necessity of such interference in a democratic society, national authorities had a margin of discretion. However, it considered that this margin is limited when the statements at issue were part of a debate of general interest (Brunet-Lecomte and Lyon-Mag, Chalabi, Desjardin, Giniewski, Orban and others, Haguenauer) or of the realm of political speech and public debate (Brasilier, Paturel). In the case of Dupuis and others, as well as in the Brunet-Lecomte and Tanant case, the Court noted that the limits of admissible criticism must be wider when the person whose reputation is at stake is an influential public figure. In all these cases the European Court, unlike national courts, held that the interference with the applicants’ right to freedom of expression was not necessary in a democratic society. In order to reach this conclusion the Court, besides examining the proportionality of the decisions at issue, held that the statements or value judgments on which they were based actually had sufficient factual grounds (Paturel, Brasilier, Desjardin, Chalabi, Brunet-Lecomte and Tanant), and that the content of the comments were neither immoderate nor obviously insulting or offensive (Giniewski, Brunet-Lecomte and SARL Lyon-Mag, Chalabi, Brunet-Lecomte and Lyon-Mag, Haguenauer). In two other cases (see below), the Court held that the publisher had not disregarded his “duties and responsibilities” in providing a medium for uncritically publishing an account in the framework of a “debate of general interest, especially important to the collective memory”, even though this account condoned the use of torture (Orban and others), or likewise that the authors had observed the rules of journalism in the disclosure of information of major public interest albeit obtained in breach of the secrecy of judicial investigation (Dupuis and others).

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application No.

Pecuniary damage

Non-pecuniary damage

    Costs and expenses

Total

PATUREL - No. 54968/00

6 900 EUR

-

7820.29 EUR

14720.29 EUR

Paid on 08/08/2006

DESJARDIN - No. 22567/03

150 EUR

-

800 EUR

950 EUR

Paid on 29/05/2008

BRUNET-LECOMTE and SARL LYON MAG’ –

No. 13327/04

2000 EUR

-

11034 EUR

13034 EUR

Paid on 21/06/2009 and 24/07/2009

CHALABI – No. 35916/04

-

1500 EUR

-

1500 EUR

Paid on 27/11/2008

ORBAN and others –

No. 20985/05

33041 EUR

-

5000 EUR

38041 EUR

Paid on 23/07/2009

BRUNET-LECOMTE and TANANT – No. 12662/06

21000 EUR

-

-

21 000 EUR

Paid on 25/02/2010 and 16/03/2010

HAGUENAUER n° 34050/05

8000 EUR

2000 EUR

8300 EUR

18300 EUR

Paid on 13/10/2010

b) Individual measures

1) Applicants who received a criminal conviction (Paturel, Dupuis, Orban and others, Brunet-Lecomte and SARL Lyon-Mag):

In these cases the applicants were ordered to pay a fine and damages. The just satisfaction awarded by the European Court, if requested by the applicants, covers the sums that they were ordered to pay as a result of the proceedings at issue. As regards the other possible negative consequences of the violation in these cases, in particular the registration of the conviction in the applicant’s criminal record, the authorities specified that since the registration of a conviction is the outcome of a court ruling, the principle of parallelism of procedures requires that only another court ruling can annul the content of the criminal record. In this respect, it should be noted that following the judgment of the European Court, the applicant had the possibility to request the re-examination of the domestic decision at issue (Art. L 626-1 and following of the Code of Criminal Procedure).

Furthermore, the authorities underlined that there are two other means, besides said procedure for re-examination of a criminal court decision, to have the applicant’s criminal record modified if he/she wants to. These two means, however, only concern part of the criminal record (schedule no. 2, accessible to a number of public administrations listed in the Code of Criminal Procedure) and even if they are used, one part (schedule no. 1) remains nevertheless accessible only to magistrates. One procedure is that of rehabilitation, which is automatically granted in certain cases (within time limits that vary according to the severity of the conviction) or may be claimed before courts (Article 782 and following of the Code of Criminal Procedure). The other is the application for exemption from registration into the criminal record, enabling convicted persons to apply to the court that ordered the conviction to exempt them from having it entered in schedule no. 2 and following schedules of the criminal record.

2) Applicants whose complaints arose from finding against them in civil proceedings (Brasilier, Giniewski, Desjardin, Chalabi, Brunet-Lecomte and Tanant, Brunet Lecomte and Lyon-Mag, Haguenauer)

In these cases, the applicants were ordered to pay certain amounts in civil proceedings. No consequence deriving from these verdicts seems to persist for them. Indeed, depending on the case:

- either the applicants did not ask within the time-limits to the European Court the award of just satisfaction (Brasilier and Giniewski cases and case of Brunet-Lecomte and Lyon-Mag) ;

- or just satisfaction awarded by the European Court redressed the damage sustained (cases of Desjardin and Brunet-Lecomte and Tanant, Haguenauer);

- or the applicant cannot validly claim to have paid any damages at his own expense, as the company owning the magazine that published the article at issue was declared civilly liable as regards payment of pecuniary penalties (Chalabi case).

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

In all these cases, the European Court criticised the grounds put forward by domestic courts for finding against to the applicants. The legislative texts are not called into question. That is why steps were taken to ensure extensive publicity for the European Court’s judgments, so that the competent courts directly applying the Convention might take them into account in practice.

All these judgments were sent out to courts and relevant directorates of the Ministry of Justice.

The Paturel judgment was also published, together with a commentary, on the intranet of the Bureau du droit européen, international et constitutionnel of the Directorate of Public Freedoms and Legal Affairs of the Interior Ministry.

Commentaries on the Paturel, Giniewski, Brasilier, Brunet-Lecomte and Sarl Lyon-Mag, Chalabi and Orban and others, Brunet-Lecomte and Tanant, Brunet-Lecomte et Lyon Mag’, as well as on the Haguenauer judgments are published by the Cour de Cassation in the section observatoire du droit auropéen of its website.

Finally, on the internet website of the Cour de Cassation a document dealing specifically with Freedom of expression and protection of personality rights in relation to the press (French and European law – July 2008) is available. The document goes through the case-law of the European Court in this field (the present cases included), with a more general presentation of actions and decisions by the Council of Europe in this field (Committee of Ministers, Parliamentary Assembly and other bodies).

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent further similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5820

Execution of the judgment of the European Court of Human Rights

Laine against France

(Application No. 41476/98, judgment of 17 January 2002, final on 17 April 2002)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the excessive length of proceedings before commercial courts (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 897th meeting of the Ministers’ Deputies (28 September 2004), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)58

Information about the measures to comply with the judgment in the case of

Laine against France

      Introductory case summary

This case concerns the excessive length of proceedings concerning civil rights and obligations before commercial courts (violation of Article 6, paragraph 1). By the time the Court delivered its judgment, the proceedings at domestic level had been closed.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

50155 EUR

7500 EUR 

4500 EUR 

62155 EUR

Paid on 07/11/2002 (capital) and 25/08/2003 (default interest)

b) Individual measures

As the proceedings were closed when the Court delivered its judgment, no further individual measure, besides payment of just satisfaction, was considered necessary by the Committee of Ministers.

      II. General measures

The general measures required to prevent violations similar to those found by the Court in the Laine judgment have been taken by France (see for instance, the judgment in the case of Malve against France, No. 46051/99, Resolution CM/ResDH(2002)47; the judgment in the case of Gerber against France, No. 33237/96, Resolution CM/ResDH(2002)118).

      III. Conclusions of the respondent state

The government considers that no individual measures is necessary in this case except the payment of just satisfaction, that the general measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)5921

Execution of the judgments of the European Court of Human Rights

Naudo and Maloum against France

        (Application n° 35469/06, judgment of 08/10/2009, final on 08/01/2010)

        (Application n° 35471/06, judgment of 08/10/2009, final on 08/01/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the excessive length of the applicants’ detention on remand (violations of article 5, paragraph 3);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

Recalling that no individual measure was necessary, as the periods of detention on remand at issue had terminated by the time the Court delivered its judgments and in the absence of a request from the applicants, the Court has not granted a just satisfaction;

Recalling that the general measures were already adopted in the framework of the cases of Muller (Final resolution ResDH (2003)50) and Etcheveste and Bidart (Final resolution CM/ResDH(2007)39);

      DECLARES, having examined the measures taken by the respondent state, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6022

Execution of the judgment of the European Court of Human Rights

Plasse-Bauer against France

(Application No. 21324/02, judgment of 28 February 2006, final on 28 May 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the failure to enforce a domestic court decision awarding visiting rights to the applicant and laying down the conditions for their exercise (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)60

Information about the measures to comply with the judgment in the case of

Plasse-Bauer against France

      Introductory case summary

This case concerns the failure to enforce a court decision awarding the applicant visiting rights in respect of her daughter and laying down the conditions for the exercise of these rights (violation of Article 6§1).

An appeal court judgment of 1997 required the presence at the applicant’s visits of a third party, an association. As the association concerned found it materially impossible to fulfil its mission, the judgment remained unenforced.

The European Court held that the national authorities did not make all sufficient efforts which might reasonably be expected to uphold the terms and conditions of the visiting rights. In particular, the authorities should have checked beforehand whether the association was in a position to carry out the public authorities' mandate to ensure compliance with the conditions for the exercise of visitation rights as laid down in the appeal court’s judgment, in order to enforce it.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3000 EUR

4000 EUR

7000 EUR

Paid on 25/08/2006

b) Individual measures

The applicant's daughter came of age in 2004. The European Court awarded just satisfaction in respect of the non-pecuniary damages sustained by the applicant. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The French authorities consider that the violation found in this case does not reflect any systemic problem. The Ministry of Justice is not aware of any similar case. In this particular case, it is the implementation of national law that caused the violation. Taking into account the fact that the French authorities, in particular the judiciary, apply the Convention directly, measures to draw their attention to the judgment should make it possible to avoid similar violations. Such measures have been adopted. The judgment has been brought to the attention of the departments of the Ministry of Justice concerned and of the competent courts and authorities, including judges competent for family matters, the Office of the Prosecutor General before the Court of Cassation, the Courts of Appeal of Aix en Provence and Orleans. In July 2007, the judgment was published by the Observatoire de droit européen on the website of the Court of Cassation.

Furthermore, the law has evolved since the facts in this case. In 2007, neutral structures for exercise of visiting rights have been recognised by Law No. 2007-297 of 5/03/2007 (Art. 22). This added a paragraph in Articles 373-2-1 and 373-2-9 of the Civil Code, expressly providing that meetings between a parent and his or her child taking place in a neutral structure are one of the means available to judges competent for family matters when organising visiting rights. These articles, modified by Law No. 2010-769 of 09/07/2010 (Art. 7), added that, whether imposed by the interest of the child or where the direct hand-over of the child to the other parent constitutes a danger for one of them, the judge may order that the visiting rights are carried out in a neutral structure chosen by the judge, or with the assistance of a trustworthy third party or of a representative of a qualified legal entity.

      III. Conclusions of the respondent state

The government considers that no individual measures are necessary in this case except from the payment of just satisfaction, that the general measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6123

Execution of the judgment of the European Court of Human Rights

Crochard and 6 other cases against France

Crochard (Application No. 68255/01, Marchal (application No. 68256/01, Odant (application No. 68257/01, Sudey (application No. 68258/01), Flouret (application No. 68259/01), Sylla (application No. 68260/01), Richard (application No. 68261/01), judgment of 3 February 2004, final on 14 June 2004)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the right to a fair trial before the employment chamber of the Court of Cassation due to the failure to communicate to the parties of whole or part of the reporting judge’s report and of the advocate general’s submissions, as well as to the impossibility for the parties to reply to them (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 897th meeting (28 September 2004) and the 955th meeting of the Ministers' Deputies (7-8 February 2006), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)61

Information on the measures taken to comply with the judgment in the case of

Crochard and 6 other cases against France

      Introductory case summary

This case concerns a breach of the right to a fair trial before the Court of Cassation due to the failure to communicate to the parties of whole or part of the reporting judge’s report and of the advocate general’s submissions, as well as to the impossibility for the parties to reply to them (violation of Article 6§1).

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and number of application

Pecuniary damage

Non-pecuniary damage

    Costs and expenses

Total

Crochard - No. 68255/01

   

1500 EUR

1500 EUR

Paid on 22/11/2004, interest paid on 15/6/2005

Marchal - No. 68256/01

   

1500 EUR

1500 EUR

Paid on 22/11/2004, interest paid on 15/6/2005

Odant - No. 68257/01

   

1500 EUR

1500 EUR

Paid on 22/11/2004, interest paid on 15/6/2005

Sudey - No. 68258/01

   

1500 EUR

1500 EUR

Paid on 22/11/2004, interest paid on 15/6/2005

Flouret – No. 68259/01

   

1500 EUR

1500 EUR

Paid on 22/11/2004

Sylla - No. 68260/01

   

1500 EUR

1500 EUR

Paid on 22/11/2004, interest paid on 15/6/2005

Richard - No. 68261/01

   

1500 EUR

1500 EUR

Paid on 22/11/2004

b) Individual measures

The just satisfaction awarded to the applicants has been paid. In addition, as also noted by the Court in its judgment, it does not emerge from the circumstances of the case that the absence of disclosure of the facts, of the procedure and of the reporting judge’s grounds of appeal before the Court of Cassation had any kind of influence on the outcome of the proceedings. Finally, the Court considered that the finding of violations constituted in itself sufficient just satisfaction in respect of the non-pecuniary damage sustained.
Therefore no individual measure, besides payment of just satisfaction, was considered necessary by the Committee of Ministers.

      II. General measures

The Court of Cassation has modified its procedures for investigating and hearing cases.

The reporting judge's report, which identifies the legal issue at stake in the case, is now sent with the case file to the public prosecutor and to the parties.

The opinion on the decision to be issued and the draft judgments suggested by the reporting judge during the deliberations of the Court of Cassation are neither communicated to the advocates general nor to the parties.

Advocates general no longer attend either the pre-hearing preparatory meeting or the deliberations.

In addition, it should be noted that, prior to the hearing, the parties' counsel are provided with the advocate general's submissions and are entitled to reply to them orally or in a note sent for the court’s deliberation. The European Court considered, in its judgments in Reinhardt and Slimane-Kaïd of 31 March 1998 and Slimane-Kaïd of 25 January 2000, that such a practice provided the parties with an opportunity to take cognizance of the submissions and reply to them under satisfactory conditions.

These measures put an end to the imbalance identified by the European Court in the investigation and hearing procedures before the Court of Cassation.

      III. Conclusions of the respondent state

The government considers that no individual measure is required in this case apart from payment of the just satisfaction, that the general measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6224

Execution of the judgments of the European Court of Human Rights

Zielinski and Pradal and Gonzalez and others, Aubert and autres and 8 other cases, Cabourdin, Achache, De Franchis, Ducret, Lecarpentier and others, Saint-Adam and Millot, Vezon, Arnolin and autres and 24 other cases, Chiesi S.A. and SCM Scanner de l'Ouest Lyonnais and others and Javaugue against France

Zielinski and Pradal and Gonzalez and others, joint applications Nos. 24846/94 and 34165/96 to34173/96, judgment of 28 October 1999, final on 28 October1999;

Saint-Adam and Millot, application No. 72038/01, judgment of 2 May 2006, final on 2 August 2006;

Lecarpentier and others, application No. 67847/01, judgment of 14 February 2006, final on 14 May 2006;

SCM Scanner de l’Ouest lyonnais and others, application No. 12106/03, judgment of 21 June 2007, final on 21 September 2007 

Aubert and others and 8 other cases, applications Nos. 31501/03, 31870/03, 13045/04, 13076/04, 14838/04, 17558/04, 30488/04, 45576/04 and 20389/05, judgment of 9 January 2007, final on 23 May 2007;

De Franchis, application No. 15589/05, judgment of 6 December 2007, final on 6 March 2008;

Cabourdin, application No. 60796/00, judgment of 11 April 2006, final on 11 July2006;

Vezon, application No. 66018/01, judgment of 18 April 2006, final on 13 September 2006;

Achache, application No. 16043/03, judgment of 3 October 2006, final on 3 January 2007;

Chiesi S.A., application No. 954/05, judgment of 16 January 2007, final on 16 April 2007;

Ducret, application No. 40191/02, judgment of 12 June 2007, final on 12 September 2007;

Javaugue, application No.39730/06, judgment of 11 February 2010, final on 11 May 2010;

Arnolin and others, applications Nos 20127/03, 31795/03, 35937/03, 2185/04, 4208/04, 12654/04, 15466/04, 15612/04, 27549/04, 27552/04, 27554/04, 27560/04, 27566/04, 27572/04, 27586/04, 27588/04, 27593/04, 27599/04, 27602/04, 27605/04, 27611/04, 27615/04, 27632/04, 34409/04 and 12176/05, judgment of 9 January 2007, final on 9 April 2007.

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in the cases of Zielinski and Pradal and Gonzalez and others, Cabourdin, De Franchis, Ducret, Saint-Adam and Millot, Vezon, Arnolin and others and 24 other cases, Aubert and others and 8 other cases, Chiesi S.A. and SCM Scanner de l'Ouest Lyonnais and others and Javaugue concern breaches of the right to a fair trial due to the application of legislative provisions which definitively and retroactively settled the merits of pending proceedings in disputes before domestic courts without being justified by any “compelling grounds of the general interest” (violations of Article 6, paragraph 1) (see details in Appendix);

Recalling that the violations of the Convention found by the Court in the cases of Achache and Lecarpentier and others concern disproportionate breaches of the applicants’ right to the peaceful enjoyment of their possessions due to the “abnormal and exorbitant burden” placed on the applicants by the application of legislative provisions which definitively and retroactively settled the merits of pending proceedings before domestic courts (violations of Article 1 of Protocol No. 1);

Recalling that the case of Zielinski and Pradal and Gonzalez and others also concerns the excessive length of certain civil proceedings before the Colmar Court of Appeal (violation of Article 6, paragraph 1);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state had paid the applicants the just satisfaction provided in the judgments,

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)62

Information on the measures taken to comply with the judgments in the cases of Zielinski and Pradal and Gonzalez and others, Aubert and others and 8 other cases, Cabourdin, Achache, De Franchis, Ducret, Lecarpentier and others, Saint-Adam and Millot, Vezon, Arnolin and others and 24 other cases, Chiesi S.A., SCM Scanner de l'Ouest Lyonnais and others and Javaugue against France

    Introductory case summary

These cases concern the application of legislative provisions which definitively and retroactively settle the merits of pending proceedings to which the applicants were parties before domestic courts (“validatory legislation”).

In the cases of Zielinski and Pradal and Gonzalez and others, Cabourdin, De Franchis, Ducret, Saint Adam and Millot, Vezon, Arnolin and others and 24 other cases, Aubert and others and 8 other cases, Chiesi S. A., SCM Scanner de l’Ouest Lyonnais and others and Javaugue, such intervention was not justified by any “compelling grounds of the general interest” and thus violated the applicants’ right to a fair trial (violations of Article 6, paragraph 1).

In the Achache and Lecarpentier and others cases, the legislative intervention placed an “abnormal and exorbitant burden” on the applicants through disproportionate breaches of their right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1).

The legislative provisions at issue were the following:

- Article 85 of the Law of 18 January 1994 “establishing the method for calculating compensation to be paid to officials of the social security funds of the Departments of Haut-Rhin, Bas-Rhin and Moselle” in the case of Zielinski and Pradal and Gonzalez and others;

- Article 87 of Law No. 96-314 of 12 April 1996 “containing various economic and financial provisions” in the cases of Cabourdin, Saint-Adam and Millot, Vezon, Lecarpentier and others, Achache, De Fancis and Ducret;

- Article 27 of the Law of 19 December 1997 “on funding social security for 1998” in the case of SCM Scanner de l’Ouest Lyonnais and others;

- Article 29 of the Law of 19 January 2000 added to an act concerning another matter, i.e. “the negotiated reduction of working hours” (subsequently known as the “second Aubry Law or the “35-hour” Law) in the cases of Arnolin and others and 24 other cases and Aubert and others and 8 other cases;

- Article 20 of the Law of 18 December 2003, “finance law for 2004” in the Chiesi S.A. case;

- Article 136 of the Law of 30 December 2004 “modifying Article L.24 of the Civil and Military Retirement Pensions Code” in the Javaugue case.

The case of Zielinski and Pradal and Gonzalez and others also concerns the excessive length of civil proceedings before the Colmar Court of Appeal (three years, eight months and eight days) (violation of Article 6, paragraph 1).

    I. Payment of just satisfaction and individual measures

(a) Just satisfaction

The just satisfaction granted by the European Court in each case was paid under conditions accepted by the applicants.

(b) Individual measures

In all these cases except the Chiesi S.A. case, the Court granted just satisfaction in respect of pecuniary damage and, where appropriate, non-pecuniary damage. In Chiesi S.A., the Court granted just satisfaction in respect of non-pecuniary damage sustained but rejected the applicant’s claim in respect of pecuniary damage, there being no causal link between the violation found and the alleged material loss, which the Court considered to be hypothetical.

In the case of Zielinski and Pradal and Gonzalez and others, the proceedings whose length was found to be excessive have been closed.

Accordingly, no further individual measure was considered necessary by the Committee of Ministers.

    II. General measures

The European Court’s judgment in Zielinski and Pradal and Gonzalez and others was sent out to all courts concerned and to the Conseil constitutionnel. In addition it was published in the Revue française de Droit administratif (No. 2 edition 2000, p 289). The Strasbourg Administrative Tribunal rejected an appeal by others concerned by the same legal provision on the grounds that their appeals should have been directed against the social security funds. This question was ultimately resolved by an out of court agreement.

The French authorities consider that there is now convergence between domestic and European case-law concerning such “validatory legislation” provisions with regard to ensuring their conformity with Article 6, paragraph 1 of the Convention and Article 1 of Protocol No. 1. They point out that, since 2001 and 2004 respectively, the Cour de cassation and the Conseil d’Etat have adopted the criterion of “compelling grounds of the general interest” as the sole justification for validatory legislation which conflict with rights protected by the Convention. Examples are the judgment of the social chamber of the Cour de cassation of 24 April 2001 in Association Etre enfant au Chesnay against Terki or the opinion given by the Conseil d’Etat in its judgment of 27 May 2005 in the case of Provin. In relation to the latter, the European Court underlined that, “following this opinion, and in other cases, the Conseil d’Etat has excluded the new provisions flowing from Article 136 of the Law of 30 December 2004 when they intervene during proceedings (see, for example, 26 September 2005, No. 255656, Barritault” (§21 of the judgment in Javaugue).

The authorities also point out that the Conseil constitutionnel rejects any law which revalidates a law annulled by judicial decision which fails to respect the res iudicata principle and which does not satisfy the criterion of sufficient motivation in the public interest or is not proportionate to the objective pursued (see, for example, Decision No. 458 DC of 7 February 2002 or No. 2004-509 DC of 13 January 2005 (rejections)). This has also been observed by academic doctrine (see E. Mignon, Chronique de la R.J.F. 2/00 p. 97 and Conclusions au B.C.D.F 5/01, No. 72, p. 65, B. Mathieu, Chronique de la RFDA No. 2/2000, pp. 295 and 296).

The authorities further indicate that recent developments in the case-law of the Conseil d’Etat concerning the action for liability deriving from law provisions indicate a concern to align with the case-law of the European Court. They quote as an example the Gardedieu judgment of 8 February 2007 in which the Conseil d’Etat applied this notion of responsibility in respect of a retroactive validatory legislation and ordered the state to compensate the appellants (this judgment was cited by the European Court in its judgment in Lilly France No. 2 against France, Application No. 20429/07, judgment of 25 November 2010, final on 25 February 2011, § 23).

Moreover on 9 March 2009 the Director of Legal Affairs of the Ministry for Foreign and European Affairs sent a note to the legal directorates of all ministries, to the Conseil d’Etat and to the Secretariat General of the government which ensures inter-ministerial co-ordination concerning draft legislation. This detailed note recapitulates the European Court’s decisions concerning validatory legislation to raise awareness among all administrators concerned of the criteria laid down by the Court in this respect. This note was aimed at the most appropriate categories within the administration, with the requisite influence over the government’s initiative in the legislative process.

With regard to bills coming from the Parliament, now less numerous, the Parliament has a legal service fully informed of the development of the European Court’s case-law (see, for example, a note of 10 February 2006 by the Legal Studies Department of the Senate on “the legal regime of validatory legislation” which includes an analysis of the European Court’s case-law: http://www.senat.fr/ej/ej_validation/ej_validation_mono.html ).

The Parliamentary chambers may also be informed as appropriate by the executive which is always present when laws are enacted and may provide any explanations needed.

Finally, with regard to reducing the time required to deal with civil case, reference should be made to the measures taken to avoid excessive length of civil proceedings (see Final Resolution CM/ResDH(2008)39 in the case of C.R. and 9 other cases of excessive length of civil proceedings). It should also be noted that Article L. 781-1 of the Code of Judicial Organisation provides an effective remedy of compensation in case of excessive length of proceedings before civil courts.

      III. Conclusions of the respondent state

The government considers that no further individual measure is required in these cases, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6325

Execution of the judgment of the European Court of Human Rights

Donadze against Georgia

(Application No. 74644/01, judgment of 07/03/2006, final on 07/06/2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concern the applicant’s right to a fair trial due to Georgian courts’ failure in 2000 effectively to examination his arguments (violation of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment,

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)63

Information about the measures to comply with the judgment in the case of

Donadze against Georgia

      Introductory case summary

The case concerns a violation of the applicant's right to a fair trial due to the absence of an effective examination of his arguments by Georgian civil courts in 2000 in proceedings for compensation against his employer, the Academy of Sciences of Georgia.

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

      I. Individual measures

a) Details of just satisfaction

Global damages

Costs and expenses

Total

3500 EUR

300 EUR

3800 EUR

Paid on 4/09/2006

b) Individual measures

The European Court awarded the applicant just satisfaction covering, on an equitable basis, the global damages sustained and the applicant expressed no further request for specific individual measures before the Committee of Ministers.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

With a view to avoiding the occurrence of new violations similar to those found in the present case, the Georgian authorities have taken the following measures:

Publication and dissemination of the European Court’s case-law

The European Court’s judgment was translated into Georgian and published in the Official Gazette of Georgia, No. 28 of 29/05/2007. It is also to be found in Judgments of the European Court of Human Rights against Georgia published by the Human Rights Centre of the Supreme Court. This book contains the judgments delivered against Georgia between 2004 and 2010 and has been issued to domestic courts. Courts’ attention has thus been drawn to the requirements of the Convention concerning the reasoning of judicial decisions.

Amendment of the Code of Civil Procedure (CPC) to reinforce the obligation to provide reasoned judgments

The CPC was amended on 13 July 2006 and 13 July 2007; several provisions have been adapted to insist in more detail on the importance of providing reasoned judgments.

The CPC provides that the conduct of proceedings should based on the adversarial principle and that decisions delivered by courts should be reasoned, on pain of being struck down.

Adversarial principle: Article 4 CPC provides that parties to a trial have the same rights and the same opportunity to argue their own claims and to contest the arguments, claims and evidence presented by the other party. Article 5 CPC affirms the principle of the equality of all citizens before the law in the following terms: “Justice is dispensed by a competent court on the basis of the principle of the equality of all citizens before the law”.

Reasoning of judicial decisions: Article 284-6 CPC provides that within 14 days from the public reading of a judgment, the court prepares a reasoned decision to be transmitted to the parties (legislative amendment of 13 July 2006).

The reasoning of the judgments of appeal courts is supervised by the Court of Cassation which may strike down judgments adopted in violation of the law and refer cases back for fresh examination by the appellate court, either in the same formation or another formation (Article 412 CPC).

A judgment is considered to have been adopted in violation of the law if:

- it is not legally well reasoned;

- its reasoning is so incomplete that it is impossible to assess the legal grounds for its adoption (Article 394 CPC as amended in 2006 and 2007).

Case-law of the Supreme Court

The Supreme Court has been called upon to apply these principles in disputes similar to that in the Donadze case, that is, between private individuals and public establishments and concerning issues related to labour law.

In a judgment of 24 October 2007, the Supreme Court struck down a judgment by the Civil Chamber of the Tbilisi Appeal Court dismissing a request to annul the dismissal of 13 administrative employees of the Union of Georgian Cooperatives, on the ground that the Appeal Court’s reasoning was so incomplete that it had proved impossible to assess the legal grounds for its adoption.

In a judgment of 13 May 2008: S. G. against Georgian Public Television, the Supreme Court partially struck down a decision of the Civil Chamber of the Tbilisi Appeal Court refusing the appellant’s request to be reinstated to his professional position. It referred the case back to the same formation of the appellate court, noting that it had failed to conduct a complete, objective and impartial examination of the evidence adduced and that its reasoning had been so incomplete that it had been impossible to assess the legal grounds for its adoption.

      III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction and that the general measures adopted will prevent similar violations and that Georgia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6426

Execution of the judgment of the European Court of Human Rights

Gurgenidze against Georgia

(Application No. 71678/01 Gurgenidze, judgment of 17/10/2006, final on 17/01/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the failure by Georgian courts adequately to protect the applicant's private life following the publication in a newspaper of his photograph and a series of insulting interviews (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment,

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)64

Information about the measures to comply with the judgment in the case of

Gurgenidze against Georgia

      Introductory case summary

The case concerns the failure by Georgian courts adequately to protect the applicant's private life following the publication in a newspaper of his photograph and a series of insulting interviews. The courts rejected the applicant's request for compensation for non-pecuniary damage.

The European Court considered that the wrong done to him and the absence of sufficient protection by the domestic courts would have caused the applicant to experience disadvantage in his private and professional life as well as a strong feeling of shame preventing him from facing others (violation of Article 8).

      I. Individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

4000 EUR

2116 EUR

6116 EUR

Paid on 21/03/2007

b) Individual measures

No individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The European Court judgment, translated into Georgian, was published in the Official Gazette of Georgia, No. 55 dated 26/11/2007.

It is also to be found in Judgments of the European Court of Human Rights against Georgia, published by the Human Rights Centre of the Georgian Supreme Court. This book contains the judgments delivered against Georgia between 2004 and 2010 and has been issued to domestic courts. Courts' attention has thus been drawn to the requirements of the Convention concerning the balance to be stuck between freedom of expression and the right to respect for private life.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Georgia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6527

Execution of the decisions of the European Court of Human Rights

in three cases against Germany

(Doertoluk, Application No. 13868/08, Grebing, Application No. 58616/09,

J.U. No. 1, Application No.35749/07, decisions of 28/09/2010 – Friendly settlements)

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 14, which provides that the Committee supervises the execution of the terms of friendly settlements as set out in the decisions of the European Court of Human Rights (hereafter “the Convention” and “the Court”;

Considering the decisions transmitted to the Committee by the Court;

Recalling that the admissible complaints of the applicants concern the excessive length of certain judicial proceedings and the absence of an effective remedy in this respect (complaints under Articles 6§1 and 13);

Whereas in this case the Court, having taken formal note of the friendly settlements reached by the government of the respondent state and the applicants, and having been satisfied that the settlements were based on respect for human rights as defined in the Convention or its Protocols decided, unanimously, to strike these cases out of its list;

Recalling that, pursuant to Article 39, paragraph 3, of the Convention as amended, the Court’s decision to strike out a case declared admissible shall be confined to a brief statement of the facts and of the solution reached;

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with the Court’s decisions in fulfilment of its obligation under Article 46, paragraph 1, of the Convention;

Having examined the information provided in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that no other measure was required in these cases to comply with the Court’s decisions,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention with respect to the commitments subscribed to in these cases and DECIDES to close their examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6628

Execution of the judgment of the European Court of Human Rights

Scoppola against Italy

(Application No. 10249/03, judgment of 17 September 2009, Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern a failure in the obligation to allow the applicant to benefit from the application of a more lenient criminal law, which entered in force after the time of commission of the offence for which he was charged (violation of Article 7), as well as the unfairness of the criminal proceedings against the applicant due to the fact that he had been deprived of the advantages attached to the waiver of certain procedural safeguards (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)66

Information on the measures taken to comply with the judgment in the case of

Scoppola against Italy

      Introductory case summary

The case concerns the failure by the authorities in their obligation to allow the applicant to benefit from the application of a more lenient criminal law which entered into force after the commission of the offence of which he was charged (violation of Article 7). It also concerns the unfairness of the criminal proceedings against the applicant in that, following the application of provisions which came in force after the beginning of the trial, he had been deprived of a possibility of reduction of the penalty provided by law, which was at the basis of his decision to be judged under a summary procedure which offers fewer procedural guarantees (violation of Article 6§1).

Arrested in 1999 for the murder of his wife and attempted murder of his son, the applicant asked to be tried under the summary procedure pursuant to article 442§2 of the Code of Criminal Procedure, as modified in January 2000 (the “CPP”). This article provided that if the crime committed by the defendant was punishable by life imprisonment, the appropriate sentence should be thirty years. The first-instance judge sentenced the applicant to thirty years’ imprisonment, thus applying the reduction of sentence provided by article 442§2 of the CPP. However, this decision was set aside by the Rome Court of Appeal and by the Court of Cassation.

Those courts took the view that it was necessary to apply Legislative Decree No. 341 of 2000, which entered into force on the date of the first-instance decision, and specified that, where there were accumulated offences, if an offender was liable – as was the applicant – to life imprisonment with daytime isolation, that penalty was to be replaced not by thirty years' imprisonment but by life imprisonment without isolation. According to those courts, it was a procedural rule applicable to all pending proceedings.

The European Court took the view that it was necessary to depart from the case-law established by the former European Commission on Human rights in X against Germany and affirm that Article 7§1 of the Convention guarantees not only the principle of non-retroactivity of more stringent criminal laws but also, and implicitly, the principle of retroactivity of the more lenient criminal law. That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

10 000 EUR

10 000 EUR

20 000 EUR

Paid on 03/02/2010

b) Individual measures

Having regard to the particular circumstances of the case and the urgent need to put an end to the breach of Articles 6 and 7, the European Court expressly stated that Italy is responsible for ensuring that the applicant's life sentence is replaced by a penalty consistent with the principles set out in the judgment, which is a sentence not exceeding thirty years' imprisonment (§154).

Following the judgment of the European Court, the Principal State Counsel’s Office at the Court of Cassation forwarded to the court in charge of the execution of Mr. Scoppola’s life sentence (the Court of Appeal of Rome) a note whereby the Attorney General of the Court of Appeal of Rome is expressly requested to apply - through an incidente d’esecuzione – to have the applicant’s life sentence replaced by a sentence not exceeding thirty years' imprisonment. On 11/02/2010 the Court of Cassation granted the request of the Attorney General: the sentence of life imprisonment was therefore replaced with a sentence of thirty year’s imprisonment.

Therefore, no other individual measure seems necessary.

      II. General measures

In the light of the direct effect granted by Italian courts to the judgments of the European Court and having regard to the possibilities offered by the procedure of incidente d’esecuzione to those in the same situation as the applicant in this case (see individual measures above), the Italian authorities consider that the publication and dissemination of the judgment of the European Court to the competent courts are sufficient measures to prevent similar violations.

To raise awareness and prevent similar violations, the judgment has been published on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights (http://www.italgiure.giustizia.it), and on the government's website (<http://www.governo.it/presidenza/contenzioso>), with a translation into Italian. These websites are widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike. The judgment has also been transmitted to all competent Authorities.

      III. Conclusions of the respondent state

The government considers that the individual measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in this case, that the general measures will prevent similar violations and that Italy has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6729

Execution of the judgments of the European Court of Human Rights

Kreuz No. 1 and 11 other cases against Poland

(see Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the applicants’ right of access to a court due to domestic courts' refusal to exempt them from court fees (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

      DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)67

Information on the measures taken to comply with the judgments in the case of

Kreuz No. 1 and 11 other cases against Poland

Introductory case summary

These cases concern the violation of the applicants’ right of access to courts of different levels due to domestic courts' refusal to exempt them from court fees between 1994 and 2005 (violations of Article 6, paragraph 1).

Considering the importance of the right of access to a court in a democratic society, the European Court found that the judicial authorities had failed to secure a proper balance between the interest of the state in collecting court fees and the interests of the applicants in pursuing their claims before a court. Accordingly, the obligation for the applicants to pay such high court fees constituted a disproportionate restriction on their right of access to a court.

    I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Judgment of

Final on

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Kreuz No. 1 (28249/95)

19/06/2001

19/06/01

-

30 000 PLN

PLN 12 442 less 976,55 EUR

Paid within the time-limit

Jedamski and Jedamska (73547/01)

26/07/2005

30/11/2005

-

8000 EUR

2 000 EUR

10 000 EUR

Paid within the time-limit

Kania (59444/00)

10/05/2007

10/08/2007

-

6000 EUR

-

6000 EUR

Paid within the time limit

Kniat (71731/01)

26/07/2005

26/10/2005

-

6000 EUR

1 250 EUR

7250 EUR

Paid within the time-limit

Kozłowski (23779/02)

23/01/2007

23/04/2007

-

6000 EUR

 

6000 EUR

Paid within the time limit

Podbielski and PPU Polpure (39199/98)

26/07/2005

30/11/2005

-

6000 EUR

2 000 EUR

less 660 EUR

7340 EUR

Paid within the time-limit

Teltronic-CATV (48140/99)

10/01/2006

10/04/2006

-

6000 EUR

2 000 EUR

8000 EUR

Paid within the time-limit

Polejowski (38399/03)

04/03/2008

04/06/2008

-

6000 EUR

130 EUR

6130 EUR

Paid within the time-limit

Kijewska (73002/01)

06/09/2007

06/12/2007

-

6000 EUR

-

6000 EUR

Paid within the time-limit

Cibicki (20482/03)

03/03/2009

03/06/2009

-

4000 EUR

-

4000 EUR

Paid within the time-limit

Palewski (32971/03)

20/01/2009

05/06/2009

-

4000 EUR

-

4000 EUR

Paid within the time-limit

Kordos (26397/02)

26/05/2009

26/08/2009

-

3000 EUR

-

3000 EUR

Paid within the time-limit

b) Individual measures

The European Court considered that the just satisfaction awarded in respect of non pecuniary damage compensated the applicants for the privation of access to a court. Any future claims will be made under the new costs regime (see general measures). The Committee considers that no further individual measure is required.

    II. General measures

The Parliament enacted a new Law on court costs in civil cases. This entered into force on 2 March 2006, bringing together in a single text general principles related to the imposition of costs, their amount and procedures for exemption. These questions had previously been determined by different sets of rules (in particular the 1967 Act on court costs and the Civil Code). Previously, the general rule was that costs should be proportional to the value of the claim. The new law provides fixed amounts for costs in most court proceedings.

In addition, the new text simplifies the calculation of proportional costs, which remain applicable in most disputes over assets. At present, proportional costs are equivalent to 5% of the value of the asset in dispute, with a minimum of 30 PLN (polish zlotys) and a maximum of 100 000 PLN.

The new law also lays down the rules for exemption from costs. Parties to a dispute may be exempted in whole or in part by the judge if they make a declaration to the effect that they could not pay them without risking their living or that of their family. Such declarations must be accompanied by a detailed statement of their financial situation. The possibility of exemption is available equally to physical and legal persons as well as organisational entities without legal personality. Exoneration form the payment of fees depends on the court’s assessment of the individual circumstances of each case.

To raise domestic courts' awareness of the requirements on the Convention, the judgments of the European Court in Kreuz and Kania have been published on the public website of the Ministry of Justice (www.ms.gov.pl) and sent out to competent courts.

      III. Conclusions of the respondent state

The government considers that no individual measure is required in these cases other than the payment of just satisfaction, that the general measures adopted will prevent similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6830

Execution of the judgments of the European Court of Human Rights

Płoski and Czarnowski against Poland

(Płoski: Application No. 26761/95, judgment of 12 November 2002, final on 12 February 2003

Czarnowski: Application No. 28586/03, judgment of 20 January 2009, final on 20 April 2009,

rectified on 4 June 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern a breach of the applicants’ right to respect for their private and family life in that, while in detention, there were denied leave to attend their parents’ funerals (violations of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures, preventing similar violations;

      DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)68

Information on the measures taken to comply with the judgments in the cases of

Płoski and Czarnowski against Poland

Introductory case summary

The cases concern violations of the applicants’ right to respect for their private and family life in that, while in detention, there were denied leave to attend their parents’ funerals (violations of Article 8). In the Płoski case, at the material time (1994) the applicant was detained on remand. In the Czarnowski case, at the material time (2003), the applicant was serving a prison sentence.

    I. Payment of just satisfaction and individual measures

a) Details of just satisfaction (Płoski case)

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1500 EUR

1170 EUR

2670 EUR

Paid within the time-limit set

In the Czarnowski case, the applicant submitted no claim for just satisfaction.

b) Individual measures

In view of the circumstances of these cases, no other individual measure was considered necessary by the Committee of Ministers.

    II. General measures

The European Court concluded that the provisions of the Code of Execution of Criminal Sentences of 1969 in force were in principle in conformity with the requirements of Convention. The provisions in the 1997 Code which replaced the 1969 Code are in substance unchanged.

The Płoski judgment was published in Polish in the Bulletin of the Council of Europe Information Centre, issue No. 1/2003, and on its Internet site www.coe.org.pl. The Ministry of Justice has sent the text of the judgment together with a circular letter to the presidents of courts of appeal to be sent out to all judges.

The Czarnowski judgment has been translated into Polish and is available on the internet site of the Ministry of Justice (www.ms.gov.pl). Information about its publication, together with a circular letter underlining the principles resulting from the European Court’s case-law has been sent out to all presidents of courts of appeal with a request to disseminate it among all penitentiary and criminal judges, as well as to the National School of Judiciary and Public Prosecution.

    III. Conclusions of the respondent state

The government considers that no other individual measure is necessary, that the measures adopted will prevent similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)6931

Execution of the judgment of the European Court of Human Rights

Szymoński against Poland

(Application No. 6925/02, judgment of 10/10/2006, final on 10/01/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the excessive length of civil proceedings concerning the readjustment of the amount of the applicant's retirement pension (violation of article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)69

Information about the measures to comply with the judgment in the case of

Szymoński against Poland

      Introductory case summary

This case concerns the excessive length of proceedings concerning the readjustment of the amount of the applicant’s retirement pension (violation of Article 6§1). Between 1992 and 2002, the civil courts quashed the pension fund’s decisions several times and referred the case back to the fund for re-examination.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

4500 EUR

-

4500 EUR

Paid within the time-limit set

b) Individual measures

The domestic proceedings ended in 2001.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

According to the provision of Article 47714 § 2 of the Code of Civil Procedure – which was already in force at the time - in cases concerning social insurance, the court examining an appeal against a decision of the pension fund is not empowered to refer the case back to the fund for re-examination. If it allows the appeal, it shall modify the contested decision and decide on the merits. Thus, according to the government, in the present case the courts did not act in conformity with the relevant legislation.

The judgment of the European Court was published on the website of the Ministry of Justice and disseminated among judges.

The general problem of length of civil proceedings in Poland is being examined within the framework of the group Podbielski, No. 27916/95.

      III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7032

Execution of the judgment of the European Court of Human Rights

Bessler against Romania

(Application No. 25669/04, judgment of 18 May 2010, final on 18 August 2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the unfairness of civil proceedings as the domestic courts failed to address a decisive argument brought by the applicant in support of her actions (violation of article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant’s heirs the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)70

Information about the measures to comply with the judgment in the case of

Bessler against Romania

      Introductory case summary

This case concerns the unfairness of civil proceedings to recover her properties which had been nationalised during the communist regime, due to the domestic courts’ failure, in 1999 and 2003, to address a decisive argument the applicant had submitted in support of her actions (violation of Article 6, paragraph 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5000 EUR

-

5000 EUR

Paid on 04/11/2010

b) Individual measures

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

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

This case presents similarities to that of Vlasia Grigore Vasilescu against Romania (Resolution CM/ResDH(2011)19), in which the Romanian authorities indicated that the violation stemmed from the failure of the domestic courts to observe their statutory obligation to give reasons for their decisions. Given the direct effect of the Convention and the case-law of the European Court in Romania, the authorities considered that the publication and dissemination of the Vlasia Grigore Vasilescu judgment should guarantee that the courts take into account the requirements of Article 6, paragraph 1, set out in this judgment, thus preventing similar violations in the future.

      III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7133

Execution of the judgments of the European Court of Human Rights

in three cases against Romania concerning the lack of sufficient reasons

for holding the applicants liable for insult and defamation

(see details in Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the unfairness of criminal proceedings for insult and defamation resulting in criminal convictions and/or award of civil damages to the civil parties due to insufficient reasoning of the domestic courts’ judgements (violations of Article 6, paragraph 1), which further amounted to unjustified interference with the applicants’ freedom of expression in two of these cases (violations of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)71

Information on the measures taken to comply with the judgments

in three cases against Romania concerning the lack of reasons

for holding the applicants liable for insult and defamation

      Introductory case summary

These cases concern the unfairness of private criminal proceedings for insult and defamation brought under Articles 205 and 206 of the Criminal Code (violations of Article 6, paragraph 1). In 2002, the applicants were convicted and sentenced to an administrative fine and payment of costs and expenses to the plaintiffs (Boldea case) or a criminal fine, payment of civil damages to the plaintiffs and of costs and expenses to the State (Folea case). In the case of Rache and Ozon, the applicants, while acquitted of the criminal charges, were found liable in tort and ordered to pay damages to the civil parties.

The European Court found that the courts of first instance did not give reasons for their decisions, having failed to assess the constituent elements of the offence or tort in the light of the relevant facts of the case (Boldea and Rache and Ozon), to examine the evidence adduced in support of the factual basis of the applicant’s allegations (Boldea and Folea) or to order evidence to be produced in support of the claims for civil damages (Rache and Ozon case). In their turn, the appellate courts failed to answer the applicants’ grounds for appeal based on such shortcomings and to redress them.

In the cases of Boldea and Folea, the European Court further found that such failures, which deprived the applicants of a fair trial, also encroached upon their freedom of expression (violation of Article 10). In this respect, the European Court considered that the applicants had acted in good faith, that they had expressed their opinions on matters of public concern and that the domestic courts had denied them the opportunity to prove that their allegations had sufficient factual basis. In these circumstances, having regard to the courts’ failure to give reasons for their decisions, the applicants’ convictions did not respond to a “pressing social need”.

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application No.

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Boldea (19997/02), judgment of 15/02/2007, final on 15/05/2007

-

-

-

-

No just satisfaction requested

Folea (34434/02), judgment of 14/10/2008, final on 14/01/2009

-

3000 EUR

1663 EUR

4663 EUR

Paid on 3/03/2009

Rache and Ozon (21468/03), judgment of 31/03/2009, final on 30/06/2009

-

-

-

-

No just satisfaction requested

b) Individual measures

    1) Boldea: The applicant claimed no just satisfaction from the European Court. Moreover, the government stated that the possibility of reopening of criminal proceedings after a judgment of the European Court is provided by Article 4081 of the Code of Criminal Procedure. However, according to the information at the authorities’ disposal, the applicant did not apply for the reopening of the criminal proceedings challenged by the judgment of the European Court. Lastly, it should be noted that under the statutory provisions applicable at the material time, the convictions were not entered in the criminal records.

2) Folea: The European Court found that the applicant had been granted amnesty under Law No. 543/2002, which exempted him from paying the criminal fine. As regards the sums actually paid following his conviction, he did not claim just satisfaction in respect of pecuniary damage before the European Court. Lastly, following the repeal of Articles 205 and 206 of the Criminal Code criminalising insult and defamation, the applicant’s conviction and sentence to a criminal fine was expunged from his criminal record.

3) Rache and Ozon: The applicants were acquitted of the criminal charges but held liable in tort. They did not submit claims for just satisfaction before the European Court.

Consequently, no other individual measure seems necessary in these cases.

      II. General measures

For the Romanian authorities, the violations found by the European Court in these cases stem from the failure of the domestic courts to observe the statutory provisions, in particular Articles 65 and 356 (c) of the Code of Criminal Procedure, which compel them to give reasons for their decisions based on the evidence adduced before them and on the evidence they must order on their own motion to be produced when it appears necessary.

The domestic courts’ attention was drawn to the requirements of Article 6, paragraph 1 and Article 10 deriving from the European Court’s judgments in these cases. Thus, the Romanian translation of the judgment in the case of Boldea was published in Official Journal No. 615 of 21 August 2008. This judgment was also sent to the Superior Council of Magistracy, for dissemination to all domestic courts and the Minister of Justice was informed of the European Court’s findings. Furthermore, the Romanian translation of the European Court’s judgment in the case of Folea was published on the website of the Superior Council of Magistracy (http://www.csm1909.ro/csm/index.php?cmd=9503). Relying on these measures, the government considers that, in view of the direct effect of the European Convention and of the case-law of the European Court in Romanian law, all the requirements of Article 6, paragraph 1 and Article 10 will be taken into account in the future.

      III. Conclusions of the respondent state

The government considers that no additional individual measures are required in the cases of Boldea and Rache and Ozon and that the individual measures adopted in the case of Folea have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court. The government also considers that the general measures adopted will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7234

Execution of the judgments of the European Court of Human Rights

9 cases against Romania concerning the lack of access to court due to excessive court fees

(see details in Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the lack of access to court due to excessive court fees (violations of article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the Court's judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)72

Information on the measures taken to comply with the judgments in 9 cases against Romania concerning the lack of access to court due to excessive court fees

      Introductory case summary

These cases concern the lack of access to court between 2002 and 2005, due to excessive court fees (violations of Article 6, paragraph 1).

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application no.

Judgment of

Final on

Just satisfaction - Total

Payment deadline

Date of payment

Adam (45890/05)

03/11/2009

03/02/2010

3000 EUR

03/05/2010

22/04/2010

Beian No. 2 (4113/03)

07/02/2008

07/05/2008

5000 EUR

07/08/2008

18/08/2008*

Brezeanu (10097/05)

21/07/2009

21/10/2009

-

-

-

Daniel Ionel Constantin (17034/03)

30/06/2009

06/11/2009

3000 EUR

06/02/2010

07/10/2009

Ilic (26061/03)

31/03/2009

30/06/2009

-

-

-

Larco and others (30200/03)

11/10/2007

31/03/2008

2000 EUR

30/06/2008

20/07/2008*

Nemeti (37278/03)

01/04/2008

01/07/2008

5680 EUR

01/10/2008

15/10/2008*

Rusen (38151/05)

08/01/2009

08/04/2009

-

-

-

S.C. SILVOGRECU COM. S.R.L. (5355/04)

23/02/2010

23/05/2010

2600 EUR

23/08/2010

31/08/2010*

* The applicant(s) waived interests in view of the small amount.

b) Individual measures

Article 322 § 9 of the Romanian Code of Civil Procedure provides the possibility of reopening civil proceedings in cases in which the European Court has found a violation of the Convention.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The general measures taken by the Romanian authorities are presented in the Final Resolution CM/ResDH(2011)24 adopted in the case of Iorga against Romania (judgment of 25/01/2007).

      III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7335

Execution of the judgments of the European Court of Human Rights

in five cases against Romania concerning criminal convictions of journalists for insult and/or defamation

(see details in Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the criminal convictions of journalists for insult and/or defamation and the disproportionate nature of the sanctions imposed to them (violations of Article 10); the automatic ban on the exercise of parental rights imposed on persons sentenced to imprisonment and the absence of effective remedies in this respect (violations of Article 8 and Article 13) and the unfairness of criminal proceedings (violation of Article 6, paragraphs 1 and 3 (d)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)73

Information on the measures taken to comply with the judgments

in five cases against Romania concerning criminal convictions of journalists for insult and/or defamation

      Introductory case summary

These cases concern the criminal conviction of the applicants on charges of insult and/or defamation, between 1994 and 2003, under Articles 205 and 206 of the Criminal Code for having published articles criticising various public authorities and officials for acts performed in their official capacity. In all cases, the European Court found that by their nature and the severity of the sanctions imposed (prison sentences or criminal fines), the criminal convictions amounted to disproportionate interference with the applicants’ right to freedom of expression (violations of Article 10).

In the case of Sabou and Pîrcălab, the European Court also found a violation of the first applicant's right to respect for family life on account of a ban exercising his parental rights following the imposition of the prison sentence. The European Court noted that under Articles 71 and 64 of the Criminal Code, the ban applied automatically whenever a prison sentence was imposed, regardless of the nature of the offence or of the children's interest and was not subject to judicial review (violation of Article 8). Moreover, domestic law did not provide an effective remedy against such interference (violation of Article 13).

Lastly, the case of Băcanu and SC "R" SA also concerns the unfairness of criminal proceedings. The European Court found that the domestic courts had dismissed most of the applicants’ requests for leave to adduce evidence without giving relevant reasons, which resulted in particular in the impossibility for the applicants to examine or have witnesses examined and prejudiced their entire defence in a manner incompatible with the requirements of a fair trial (violation of Article 6, paragraphs 1 and 3 (d)).

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Dălban (28114/95), [GC] judgment of 28/09/99, Interim Resolution ResDH(2005)2

-

20 000 French francs

-

20 000 French francs

Paid on 15/12/1999

Cumpănă and Mazăre (33348/96), [GC] judgment of 17/12/2004

-

-

-

-

No just satisfaction awarded.

Sabou and Pîrcălab (46572/99), judgment of 28/09/2004, final on 28/12/2004

1582.42 EUR

6000 EUR

4000 EUR

11582.42 EUR

Paid on 05/04/2005 (interests waived in view of small amount)

Barb (5945/03), judgment of 7/10/2008, final on 7/01/2009)

19.88 EUR

1000 EUR

1781 EUR

2800.88 EUR

Paid on 06/04/2009 (interests waived in view of small amount)

Băcanu and SC "R" SA (4411/04), judgment of 3/03/2009, final on 3/06/2009)

3150 EUR

5000 EUR

-

8150 EUR

Paid on 03/09/2009

b) Individual measures

1) Dălban: The applicant died on 13 March 1998. By the time the European Court gave its judgment, his conviction had been overturned by the Supreme Court of Justice, following an extraordinary appeal lodged by the Prosecutor General. Under Article 41, the European Court awarded the applicant’s widow just satisfaction in respect of non-pecuniary damage.

2) Cumpănă and Mazăre: The European Court noted that on the 22 November 1996, the applicants were granted a presidential pardon which exempted them from serving their prison terms and terminated the ban on the exercise of some of their civil rights. As regards the one-year ban on the exercise of their profession imposed as security measure, the European Court found that it had not been enforced, since the applicants continued working as journalists after their conviction. Subsequently, the authorities indicated that the convictions had been expunged from the applicants’ criminal records on the expiry of the statutory time-limit for rehabilitation.

Apart their criminal convictions, the applicants were ordered to pay civil damages to the injured party and sought to recover the corresponding amount together with other heads of damage under Article 41. In dismissing the applicants’ claim for pecuniary damage, the European Court relied on its findings that their convictions could have been regarded as “necessary in a democratic society” had the criminal sanctions and additional prohibitions not been manifestly disproportionate (paragraph 129). As regards non-pecuniary damage, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction.

3) Sabou and Pîrcălab: As regards the first applicant, the European Court noted that after being imprisoned from 20 august to 5 October 1998, he was granted a suspension of the execution of his prison sentence. A presidential pardon granted on 2 February 1999 exempted him from serving the remainder of his sentence and ended the ban on the exercise of his parental rights. The convictions were expunged from the applicants’ criminal records on the expiry of the statutory time-limit for rehabilitation.

The European Court awarded the applicants just satisfaction in respect of pecuniary damage, corresponding to the amount of the civil damages the applicants were obliged to pay to the civil party in the proceedings at issue, non-pecuniary damage and costs and expenses.

4) Barb: The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage and costs and expenses. It was open to the applicant to request the reopening of the criminal proceedings at issue, in conformity with Article 4081 of the Code of Criminal Procedure. According to the information at the authorities’ disposal, no such requested had been made. In any event, the applicant’s conviction was expunged from his criminal record following the repeal of Articles 205 and 206 of the Criminal Code (see infra under “General measures”).

5) Băcanu and SC "R" SA: In the proceedings at issue, criminal sanctions were inflicted only on Mr. Băcanu, author of the article in question. As publishing company, the applicant SC "R" SA was held jointly liable in tort for the amount of the civil damages. The European Court awarded them jointly just satisfaction in respect of pecuniary and non-pecuniary damage.

As to the criminal conviction, it was open to Mr. Băcanu to request the reopening of the proceedings, in conformity with Article 4081 of the Code of Criminal Procedure. According to the information at the authorities’ disposal, no such requested had been made. In any event, the conviction was expunged from the first applicant’s criminal record following the repeal of Articles 205 and 206 of the Criminal Code (see infra under “General measures”).

In the circumstances presented above, no further individual measure was considered necessary by the Committee of Ministers.

    II. General measures

a) Violations of Article 10

1) Legislative measures:

Following the European Court’s judgments in the first three cases, Emergency Regulation No. 58/2002 and Law No. 160/2005 abolished prison sentences for insult and defamation respectively. Subsequently, Law No. 278/2006, which entered into force on 11 August 2006, repealed Articles 205 to 207 of the Criminal Code and, as a consequence, both insult and defamation were decriminalised. In January 2007, however, the Constitutional Court found the decriminalisation of insult and defamation to be unconstitutional.

The Constitutional Court’s decision generated some uncertainty as to its effects on the decriminalisation of insult and defamation. In order to clarify this issue, the Prosecutor General lodged an appeal in the interest of the law (recurs in interesul legii) with the High Court of Cassation and Justice. In its ruling of 18 October 2010, the High Court of Cassation and Justice confirmed that notwithstanding the Constitutional Court’s decision, insult and defamation are no longer criminal offences. Under Article 414², paragraph 3 of the Code of Criminal Procedure, this ruling is henceforth binding for all domestic courts.

Lastly, as a result of the decriminalisation of insult and defamation, the ban on the exercise of certain rights under Articles 71 and 64 of the Criminal Code and the security measures provided therein can no longer be imposed in similar cases.

2) Publication and dissemination: Translations into Romanian of the European Court’s judgments in all these cases were published in the Official Journal in 2000, 2005 and 2009. Several conferences, training courses and seminars for judges and public prosecutors have been organised since 2001, specifically dealing with issues related to the freedom of expression, as guaranteed under Article 10. These measures were aimed at raising awareness of the European Court’s case-law and at ensuring that the relevant domestic law is construed in accordance with the principles set by the European Court.

The authorities provided examples of court decisions given in 2003 – 2004, which show that the domestic courts, often by reference to the European Court’s case-law, acquitted defendants of charges of insult and defamation, not least in view of their intention to make public information and ideas on issues of public interest.

b) Violation of Articles 8 and 13

The European Court found that under Article 71 of the Criminal Code, the ban on the exercise of parental rights provided by Article 64 of the Criminal Code automatically applied as a consequence of the imposition of a prison sentence.

Article 71 of the Criminal Code was amended by Law No. 278/2006. According to the provisions currently in force it shall be for the courts to ban or not the exercise of parental rights. When exercising their power, courts must take into account the nature and seriousness of the offence, the circumstances of the cause, the personality of the offender and the best interest of the child. The imposition of such a ban is subject to appellate courts’ review within the ordinary framework of appeals.

As regards the bans on the exercise of parental rights applied prior to the European Court’s judgment in the case of Sabou and Pîrcălab and still in force, the government indicated that it is open to the affected persons to apply for judicial review in the light of the criteria set out by Article 71 as currently in force, by way of an objection to the execution to be lodged under Article 461 d) of the Code of Criminal Procedure. The government recalled that in the case of Iordache against Romania (No. 6817/02, judgment of 14/10/2008, final on 14/01/2009), the European Court found that this procedure constitutes an effective remedy in respect of continuing violations arising from the automatic application of the ban under the previous law (paragraph 60 of the judgment).

c) Violation of Article 6, paragraphs 1 and 3 (d)

For the authorities, the violation found by the European Court in the case stems from the failure of the domestic courts to observe the legal provisions compelling them to take all relevant and instrumental evidence and give reasoned decisions when dismissing requests of the parties for leave to adduce evidence (Article 67 of the Code of Criminal Procedure). Recalling that the judgment was translated and published in Official Journal No. 0484 of 13 July 2009, the government considers that, in view of the direct effect of the Convention and of the case-law of the European Court in Romanian law, the requirements of Article 6, paragraph 1 and 3 (d) resulting from this judgment will be taken into account by the domestic courts and that, consequently, similar violation will be prevented.

    III. Conclusions of the respondent state

The government considers that no further individual measure, apart from those presented above, is required in these cases, that the general measures taken will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7436

Execution of the judgment of the European Court of Human Rights

Ghibusi against Romania

(Application No. 7893/02, judgment of 23 June 2005, final on 12 October 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the failure to enforce a court decision delivered in May 2001, ordering the applicant's reinstatement in her post as a private doctor's medical assistant and enjoining the doctor to conclude an employment contract with her (violation of article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state had taken every possible measure to pay the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)74

Information about the measures to comply with the judgment in the case of

Ghibusi against Romania

      Introductory case summary

The case concerns the failure to enforce a court decision delivered in May 2001, ordering the applicant’s reinstatement in her post as a private doctor’s medical assistant and enjoining the doctor to conclude an employment contract with her (violation of Article 6§1).

The European Court stressed that the domestic authorities did not take all the measures that could reasonably be expected of them with a view to assisting the applicant to enforce the decision.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary and non-pecuniary damage

Costs and expenses

Total

4800 EUR

100 EUR

4900 EUR

Paid on 12/01/2006

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of the pecuniary and non-pecuniary damage which she suffered due to the failure to enforce the final judicial decision ordering her reinstatement, as well as for costs and expenses. The Romanian authorities indicated that following the judgment of the European Court the applicant did not formulate any request as regards the execution of the decision ordering her reinstatement.

As regards the payment of the just satisfaction awarded by the European Court, the authorities stated that, given the applicant’s refusal to open a bank account in euros, on 12/01/2006 (before the expiry of the time-limit) a delegation from the Ministry of Public Finances went to the applicant’s home to pay her the amount due. The applicant refused the payment, stating that the time-limit expired on 12/10/2005. In these circumstances, the amount has been deposited in a bank account set up in the applicant’s name and the receipt attesting the deposit was sent to her. The applicant sent the document back, asking that the payment be made at her home. She also requested the payment of default interest. The receipt is currently being kept at the applicant’s disposal by the Ministry of Foreign Affairs. She may ask for it to be sent to her at any time to be able to withdraw the amounts deposited in her name. The applicant expressed her disagreement with the government, considering that the payment has not been made in conformity with the Court’s judgment.

In view of the above information, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The government considers that the violation found by the European Court resulted from the particular circumstances of the case and, therefore, no general measure would be required.

Nonetheless, the judgment of the European Court was published in the Official Journal and on the internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). Further, the National Union of Bailiffs was informed of the requirements of the European Convention in the context of the execution of internal courts’ decisions involving personal acts of a private party.

      III. Conclusions of the respondent state

The government considers that no other individual measure is required, apart from the payment of the just satisfaction, that no general measures were necessary in view of the isolated nature of the violation found and that Romania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7537

Execution of the decision of the European Court of Human Rights

Ionescu and Negoiţă against Romania

(Application No. 22738/07, decision of 21 September 2010, friendly settlement)

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of the terms of friendly settlements as set out in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the decision in this case, transmitted by the Court to the Committee;

Recalling that the applicants’ complaints in this case concerned the length and the outcome of civil proceedings (complaints regarding Articles 6, paragraph 1, of the Convention and 1 of Protocol No. 1);

Whereas in this case the Court, having taken formal note of friendly settlement reached by the government of the respondent state and the applicants, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols decided, unanimously, to strike this case out of its list;

Whereas under this friendly settlement it was agreed that the government of the respondent state would pay the applicants 3 200 EUR, within three months as from the notification of the decision;

Recalling that, pursuant to Article 39, paragraph 3, of the Convention as amended, the Court’s decision to strike out a case declared admissible shall be confined to a brief statement of the facts and of the solution reached;

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with the Court’s decisions in fulfilment of its obligation under Article 46, paragraph 1, of the Convention;

Having examined the information provided in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that on 9 December 2010, within the time-limit agreed under the terms of the friendly settlement, the government of the respondent state paid the applicants the sum provided in the friendly settlement and that no other measure was required in this case to comply with the Court’s decision;

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention with respect to the commitments subscribed to in this case and DECIDES to close its examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7638

Execution of the judgment of the European Court of Human Rights

Virgil Ionescu against Romania

(Application No. 53037/99, judgment of 28/06/2005, final on 28/09/2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the unfairness of civil proceedings for adjustment of the amount of a debt established by a court decision in 1991 and the debtor’s failure to comply with this decision (violations of Article 6, paragraph 1), further resulting in the infringement of the applicant’s right to respect for his property (violation of Article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)76

Information about the measures to comply with the judgment in the case of

Virgil Ionescu against Romania

      Introductory case summary

The case concerns the unfairness of civil proceedings brought by the applicant to obtain the adjustment of the amount of a debt a public body had been ordered to pay to him by a court decision of October 1991. The applicant’s claim was rejected by the domestic courts (in last instance in September 1998) on the ground that he had lodged his request for an expert report to assess the amount of the adjusted debt out of time. The European Court found however that the request had been lodged in accordance with the relevant provisions of the Code of Civil Procedure, with the result that that the incorrect dismissal of the applicant’s claim for adjustment infringed his right to a fair trial.

The case also concerns a violation of the applicant’s right of access to a court caused by the debtor’s refusal to comply with the court decision of October 1991, which had compelled the applicant to resort to enforcement proceedings against a public body (violations of Article 6, paragraph 1).

Moreover, the European Court found that the debtor’s failure to comply with the final decision of October 1991 and the domestic courts’ failure to adjust the amount of the debt breached the applicant’s right to the peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

7500 EUR

-

7500 EUR

Paid on 10/01/2006 (the applicant waved interest)

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage resulting from the violations it found. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

    II. General measures

The government considers that the violation of the applicant’s right to a fair trial stems from the misapplication of the procedural provisions regulating the submission of requests for evidence. The domestic courts’ attention was drawn to the requirements of Article 6, paragraph 1 set out in this judgment, through its translation and publication in Official Journal No. 0396/8.05.2006 and on the websites of the High Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp) and the Supreme Council of Magistracy (http://www.csm1909.ro/csm/index.php?cmd=9503). Furthermore, the European Court’s case-law is regularly presented and discussed during the initial and continuing training of magistrates.

As regards the violations of the right of access to court and the right to respect for the applicant’s possessions arising from the failure of the public body to comply with the court decision ordering the payment of the debt, it should be noted that the European Court found similar violations in a number of other cases against Romania, which are currently being supervised by the Committee of Ministers within the framework of the Săcăleanu group of cases (No. 73970/01, judgment of 06/09/2005).

      III. Conclusions of the respondent state

The government considers that no other individual measure is necessary in this case, apart from the payment of the just satisfaction awarded by the Court and that the general measures taken will prevent violations similar to that relating to the unfairness of the civil proceedings challenged by the judgment of the Court. The government will continue to make all the necessary efforts, within the framework of the supervision of the Committee of the Săcăleanu group of cases, in respect of the other violations found by the Court in the present case with a view to avoiding similar violations. The government concludes that in the present case Romania has complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7739

Execution of the judgments of the European Court of Human Rights

Stojanović, Jovančić & Milošević against Serbia

(Application No. 34425/04, judgment of 19/05/2009, final on 19/08/2009,

Application No. 38968/04, judgment of 05/10/2010,

and Application No. 32484/03, judgment of 18/01/2011)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concern unlawful interference with the applicants' correspondence by the prison authorities (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)77

Information on the measures taken to comply with the judgments in the cases of

Stojanović, Jovančić & Milošević against Serbia

      Introductory case summary

These cases concern violations of the applicants’ right to respect for their private life in that the prison authorities unlawfully opened their correspondence with domestic bodies and the Court (violation of Article 8).

The Court noted that no court decision had ever been issued as required under domestic law in respect of the interference with the applicants’ correspondence and that the applicable prison rules and regulations had been themselves vague in this regard. Therefore, it concluded that the interference with the applicants’ correspondence was not in “accordance with the law”.

      I. Individual measures

The Court held that the finding of the violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The authorities of the respondent state have taken a number of measures to eliminate any unlawful interference of the prison authorities with prisoners’ correspondence.

1) Legislative measures: To comply with the Convention’s standards concerning correspondence in prison, the Law on Enforcement of Criminal Sanctions was amended on 11/09/2009 after the events at the origin of these cases. Article 75 of the amended law guarantees prisoners an unlimited right to correspondence. This right may be limited only by a decision of a court. On 20/10/2005, before the law was changed, the Directorate for Enforcement of Prison Sanctions asked all prisons in the country in writing not to open prisoners’ letters and to respect their right to correspondence.

2) Publication and dissemination: The Court's judgment in the Stojanović case has been translated into Serbian and published in the Official Gazette (No. 54/2009) as well as on the website of the Government Agent (www.zastupnik.gov.rs). The Government Agent forwarded the judgment to the Ministry of Justice requesting its distribution to all prison authorities in the country. He also published an expert comment regarding this judgment in the legal journal, Paragraf.

      III. Conclusions of the respondent state

The government considers that no individual measure is required and that the general measures adopted will prevent similar violations and that Serbia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7840

Execution of the judgment of the European Court of Human Rights

Allard against Sweden

(Application No. 35179/97, judgment of 24/06/2003, final on 24/09/2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the demolition of a house built by the applicant on jointly owned property without the consent of the other joint owners (violation of Article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)78

Information on the measures taken to comply with the judgment in the case of

Allard against Sweden

      Introductory case summary

The case concerns the demolition, in June 1996, of a house built by the applicant on jointly owned property without the necessary consent of the other joint owners. The European Court found that the fact of being ordered to be removed from her house and later have it demolished had imposed on the applicant an individual and excessive burden (violation of Article 1 of Protocol No. 1).

The European Court noted in particular that the appellate court had decided on the applicant’s appeal against the decision rejecting her request for postponement of the enforcement of the removal judgment before the expiry of the time-limit set for the applicant to make her submissions. Moreover, the Enforcement Office had started to demolish the house before the delivery to the applicant of the appellate court’s decision and the expiry of the time-limit. Furthermore, the European Court gave consideration to the fact that when the Supreme Court, on 04/03/1996, had rejected the applicant’s request for a stay of the removal proceedings and refused her leave to appeal in those proceedings, there had been ongoing proceedings concerning the possible division of the jointly owned property. It finally took into account that the house was used only by the applicant and her close family and could not be seen from the plots used by the other joint owners seeking its removal.

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

100000 EUR

-

25000 EUR

125000 EUR

Paid on 12/11/2003

b) Individual measures

In 1997 and 2002 the applicant was granted building permits authorising her among other things to rebuild a house on the site of the demolished one, belonging henceforth to her as an individual plot.

Consequently, no other measure was considered necessary by the Committee of Ministers.

      II. General measures

The violation in the present case seems to be due to the complexity of the proceedings, rather than a flaw in the relevant legislation

A summary and a copy of the European Court's judgment were sent to the Supreme Court, all Courts of Appeal, the District Court concerned, the Enforcement Office and the Parliamentary Ombudsman. Particular attention was drawn to the European Court’s findings that the Supreme Court should have awaited the outcome of the other pending proceedings before rejecting the applicant’s request for a stay of the removal proceedings and refusing her leave to appeal in those proceedings.

In addition, a summary of the judgment was published in the Svensk Juristtidning, a widely read legal journal. This article particularly emphasises the lack of coordination between the various judicial bodies involved in the case.

      III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that Sweden has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)7941

Execution of the judgment of the European Court of Human Rights

Khurshid Mustafa and Tarzibachi against Sweden

(Application No. 23883/06, judgment of 16/12/2008, final on 16/03/2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the freedom to receive information of the applicants, who were evicted from their flat for refusing to remove a satellite dish (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)79

Information on the measures taken to comply with the judgment in the case of

Khurshid Mustafa and Tarzibachi against Sweden

      Introductory case summary

This case concerns the violation of the freedom to receive information of the applicants, Swedish nationals of Iraqi origin, parents of three children, who were evicted from their flat for refusing to remove a satellite dish (violation of Article 10).

The applicants refused to dismantle a satellite dish, relying on their constitutional right to receive information. Consequently the landlord (a real estate company), by a letter of 2/04/2004, gave them notice of termination of the tenancy agreement of the flat they had rented since 1999. Later in April 2004, the landlord initiated proceedings against the applicants and other tenants who had installed satellite dishes before the Rent Review Board in Stockholm.

By a final decision of 20/12/2005, the Svea Court of Appeal found that the applicants had disregarded their obligations as tenants under the tenancy agreement and chapter 12, section 25 of the Land Code to such a degree that the agreement should not be prolonged. Although the new satellite installation was safe, the landlord's interest for order and good custom weighed more heavily than the applicants' freedom to receive information. The outcome of the Court of Appeal decision was the applicant's eviction from the flat in which they have lived for more than six years.

The European Court noted that at that moment there were no other means for the applicants to receive television programmes in Arabic and Farsi broadcast from their place of origin, Iraq. Moreover, the safety concerns expressed by the owner were examined by the domestic courts which concluded that the installation was safe. Furthermore, the Court noted that the applicant's flat was located in one of the suburbs of Stockholm with no particular aesthetic aspirations.

The European Court stressed that the outcome of the Court of Appeal decision was the eviction of the applicants and their three children from their home, a decision that was a disproportionate measure and not necessary in a democratic society. The Court concluded that the respondent state failed in its positive obligation to protect the right of the applicants to receive information.

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

6500 EUR

5000 EUR

10000 EUR

21500 EUR

Paid on 18/05/2009

b) Individual measures

Following the decision of the Svea Court of Appeal, the landlord offered the applicants the opportunity to stay in their flat if they agreed to remove the satellite dish, but they refused and moved from the flat on 1/06/2006 to another flat situated 110 km west of Stockholm. The European Court awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damage.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The violation of Article 10 in this case stems from an isolated situation resulting from the interpretation of the Land Code by the Svea Court of Appeal. Further, it should be underlined that the Convention and the case-law of the European Court enjoy direct effect in the Swedish legal order. The judgment in English and a summary in Swedish have been published on the Swedish National Courts Administration's website (www.domstol.se) and on the government's human rights website (www.manskligarattigheter.gov.se).

A report containing the summary of the judgment in Swedish with a copy of the judgment attached has been sent to relevant domestic courts and authorities, including those directly involved in the case.

Moreover, following the judgment, the main actors in the Swedish tenancy market have also issued a standard clause for tenancy contracts according to which tenants should have the right to install a satellite dish for their flat after having consulted with the land-lord, provided that the latter has no reasonable grounds for opposing it. A recommendation was also made to seek an agreement on the inclusion of this standard clause in tenancy contracts.

      III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that Sweden has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)8042

Execution of the judgment of the European Court of Human Rights

Nikolov against “the former Yugoslav Republic of Macedonia”

(Application No. 41195/02, judgment of 20/12/2007, final on 20/03/2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant's right to an impartial tribunal in that his case was heard by a trial judge whose wife had been employed with the defendant company shortly after the proceedings had started (violation of Article 6, paragraph1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)80

Information about the measures to comply with the judgment in the case of

Nikolov against “the former Yugoslav Republic of Macedonia”

      Introductory case summary

This case concerns the violation of the applicant’s right to an impartial tribunal as a result of the fact that his case concerning the payment of insurance was heard by a trial judge whose wife had been employed with the defendant insurance company shortly after the proceedings had started. The trial judge did not bring this fact to the immediate attention of the President of the Štip Court of First Instance with a view to a possible decision on his exclusion from the case, as provided by the domestic law. Furthermore, the Court of Appeal did not address the applicant’s concerns about the judge’s impartiality in this regard (violation of Article 6, paragraph 1).

The Court noted that there was objective justification for the applicant’s apprehension that the trial judge lacked the requisite impartiality to the extent necessary under Article 6.

      I. Individual measures

The Court did not award any just satisfaction to the applicant, since he failed to submit any such claim within the time-limit provided. In accordance with Article 400 of the Civil Procedure Act, the applicant is entitled to request the reopening of the proceedings.

      II. General measures

The provisions of the Civil Procedure Act, in force also when the facts of this case took place, provide the possibility to exclude a trial judge from the proceedings in situations similar to those of the present case. Although there were adequate legislative guarantees, the violation in this case occurred as an isolated event.

The Court’s judgment has been translated and published on the website of the Ministry of Justice (www.pravda.gov.mk). All courts in the country, including the courts involved in the present case, have been informed of the judgment and the violation found.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that “the former Yugoslav Republic of Macedonia” has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)8143

Execution of the judgments of the European Court of Human Rights

Dumanovski, Docevski & Blage Ilievski against “the former Yugoslav Republic of Macedonia”

(Application No. 13898/02, 66907/01 and 39538/03, judgments of 08/12/2005, final on 03/07/2006, of 01/03/2007, final on 01/06/2007 and of 25/06/2009, final on 25/09/2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the excessive length of proceedings concerning civil rights and obligations before administrative bodies (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided only in the judgment in the case of Docevski (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)81

Information on the measures taken to comply with the judgments in the cases of

Dumanovski, Docevski & Blage Ilievski against “the former Yugoslav Republic of Macedonia”

      Introductory case summary

These cases concern the excessive length of proceedings mainly before administrative bodies, such as the Kumanovo Employment Bureau and the Ministry of Labour and Social Policy, the Pension and Disability Insurance Fund and its Second-Instance Commission and the Government Appeal Commission, relating to various social security benefits du to the applicants. Each applicant instituted administrative proceedings on several occasions before the Supreme Court either as a result of the inactivity of these administrative bodies or to challenge their decisions. Proceedings lasted from 1995 to 2001 in the Dumanovski case, from 1996 to 2005 in the Docevski case and from 1996 to 2004 in the Blage Ilievski case.

The Court found that substantial delays were attributable to the authorities and caused mainly by the re-examination of the cases or inactivity of the administrative bodies. The Court in particular noted that special diligence was required where the applicant had lost his or her means of subsistence after being dismissed from employment (in the case of Dumanovski) as well as in pension disputes (in the cases of Docevski and Blage Ilievski) (violations of Article 6, paragraph 1).

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Dumanovski 13898/02

-

-

-

-

 

Docevski

66907/01

-

3600 EUR

600 EUR

4200 EUR

Paid on 31/08/2007

 

Blage Ilievski

39538/03

-

-

-

-

 

b) Individual measures

All domestic proceedings have been concluded. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The authorities of the respondent state have taken a number of measures to reduce the excessive length of proceedings before administrative bodies and domestic courts.

a) Legislative measures: In order to reduce the excessive length of administrative proceedings before the domestic courts the new Law on Courts and the new Law on General Administrative Procedure was adopted in 2006.

The new Law on Courts established a specialised Administrative Court as from December 2007. The Administrative Court now has jurisdiction to resolve administrative disputes which were previously decided by the Supreme Court.

According to the provisions of the new Law on General Administrative Procedure, the Administrative Court is now authorised to decide on the merits in certain cases following the annulment of an administrative decision. In this context, the law prevents multiple re-examination of cases such as the present ones and thus reduces the excessive length of administrative proceedings before domestic courts.

To prevent inactivity by administrative bodies in administrative proceedings, Amendments to the new Law on General Administrative Procedure were adopted in 2008. They introduced a number of novelties with a view to accelerating administrative proceedings.

In particular, any request made to the administration will be considered to have been accepted, if the administration fails to respond to that request within a certain deadline (the concept of “tacit authorisation”).

Deadlines in administrative proceedings have also been considerably shortened. The rules on serving documents have been simplified. The deadline for service of documents has been reduced from 15 to 7 days. Parties to administrative proceedings shall be served with any relevant document only once. In case of service by registered letter, if such letter is not received by the addressee, the post office will leave a notice on his or her residence door or in the registered address of the corporate addressee, as the case may be. By such a notice the addressee shall be invited to collect any documents within 7 days. Should the addressee fail to comply, it will be considered that the service has been duly performed. The service of documents in electronic form has also been introduced. Furthermore, the second-instance authority shall make a decision on the merits under certain circumstances, for example in situations when a matter had already been referred back once for re-examination to a first-instance authority.

Finally, pursuant to these amendments, the administrative authorities shall have an obligation to keep administrative statistics and to submit periodic reports to the Ministry of Justice in this respect.

b) Efficiency of the Administrative Court: As of September 2008, the Administrative Court had accepted 3751 new cases. Throughout this period the Administrative Court resolved in aggregate 3375 cases and managed to dispose of 70% of the incoming cases. In 2008, the number of judges at the Administrative Court has been raised from 19 to 26. In addition, the Administrative Court recruited a number of additional court clerks with a view to shortening the length of proceedings before that court.

c) Awareness-raising campaign: A number of events have been organised to inform the administrative authorities of the legislative amendments introduced. In October 2008 a wide media campaign was carried out to raise awareness of the amendments, including the rights of individuals in cases of excessive length of administrative proceedings.

d) Publication and dissemination: The Court's judgments have been translated and published on the website of the Ministry of Justice (www.pravda.gov.mk). In the case of Dumanovski, the judgment was also forwarded to the Supreme Court.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in this case, that these measures will prevent similar violations and that “the former Yugoslav Republic of Macedonia” has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)8244

Execution of the judgments of the European Court of Human Rights

Omojudi and A.W. Khan against the United Kingdom

(Omojudi, Application No. 1820/08, judgment of 24 November 2009, final on 24 February 2010;

A.W. Khan, Application No. 47486/06, judgment of 12 January 2010, final on 12 April 2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the violation of the right to private and family life as the applicants’ deportation orders were not proportionate to the legitimate aim pursued (violation of Article 8) (see details in Appendix);

Having invited the government of the United Kingdom to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)82

Information on the measures to comply with the judgments in the cases of

Omojudi and A.W. Khan against the United Kingdom

      Introductory case summary

In Omojudi, the applicant was a Nigerian citizen granted indefinite leave to remain in the United Kingdom on 18 April 2005. In November 2006 he was convicted of sexual assault and sentenced to 15 months' imprisonment and deported to Nigeria in April 2008. The Court held that “having regard to the circumstances of the case, in particular the strength of the applicant's family ties to the United Kingdom, his length of residence, and the difficulty that his youngest children would face if they were to relocate to Nigeria”, the applicant's deportation was not proportionate to the legitimate aim pursued (§48) (violation of Article 8).

In the case of A.W. Khan, the applicant was a Pakistani by birth and granted indefinite leave in the United Kingdom on 5 October 1978. He was convicted of attempted importation of a prohibited narcotic in January 2003 and after pleading guilty was sentenced to 7 years' imprisonment. He was released in April 2006 for good conduct. In May 2006 the applicant was issued with a deportation order. Applications for reconsideration in August and November 2006 and August 2008 were all considered inadmissible. The Court noted that the applicant had lived in the United Kingdom most of his life; had no continuous link with Pakistan; had important family ties in the United Kingdom and had not re-offended since being freed in 2006. It concluded that to expel the applicant would not be proportionate to the legitimate aim pursued (violation of Article 8).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Omojudi (1820/08)

-

3000 EUR

6000 EUR

9000 EUR

Paid on 20/05/2010

A.W. Khan (47486/06)

-

-

1750 EUR plus 3,39 GBP interest

1750 EUR plus 3,39 GBP interest

Paid on 27/07/2010

b) Individual measures

The deportation order against Mr Omojudi was revoked on 30 April 2010. However the applicant had unfortunately died and therefore never re-entered then United Kingdom. On 2 February 2010 the UK Border Agency wrote to Mr Khan informing him that his deportation order had been revoked and that his indefinite leave to remain in the United Kingdom was reinstated. Consequently, no further individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The judgments have been sent out to all the relevant authorities, in particular: the legal officer in the Home Office Legal Advisor's Branch with lead responsibility for advising the UK Border Agency on Article 8; the legal officer in the Home Office Legal Advisor's Branch with lead responsibility for advising the UK Border Agency on deportation, the Assistant Director of the Criminal Casework Directorate, the UK Border Agency, Head of Litigation Strategy; and Policy Advisor to the UK Border Agency on Article 8, Complex Advice Team.

Article 8 of the Convention is incorporated into s.6(1) of the Human Rights Act 1998 and as such its scope in domestic law is determined by the domestic courts which must take into account judgments of the European Court (s.2). Moreover, there are guidelines in place, published in August 2010, advising the UK Border Agency on how to address issues arising under Article 8: Article 8 Asylum Policy Information Guidance.

The Omojudi judgment was published in Lawtel, Butterworths/Lexis Nexis, The Times Law Reports (15/12/2009) and the European Human Rights Review (2010) 51 EHRR 10.

The judgment in Kahn was published in European Human Rights Review (2010) 50 EHRR 47; The Times Law Reports (03/02/2010); Lexis General Case Digest (12/01/2010); Halsbury's Laws, Constitutional Law and Human Rights (volume 8(2)), paragraph D149.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)8345

Execution of the judgment of the European Court of Human Rights

Liberty and others against the United Kingdom

(Application No. 58243/00, judgment of 1 July 2008, final on 1 October 2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the right to respect for private life, due to the unforeseeable character of the legislation in force between 1990 and 1997 which conferred on the authorities very wide discretion to monitor certain electronic communications (violation of Article 8) (see details in Appendix);

Having invited the government of the United Kingdom to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)83

Information on the measures to comply with the judgment in the case of

Liberty and others against the United Kingdom

      Introductory case summary

This case concerns a violation of the right to respect for the applicants’ private life, in particular their correspondence, due to the unforeseeable character of the legislation in force between 1990 and 1997 which conferred on the authorities wide discretion to monitor certain electronic communications (violation of Article 8). Both applicants were non-governmental organisations working in the field of human rights and established in Ireland and the United Kingdom.

The Court found that under the Interception of Communications Act 1985 (ICA) the national authorities (the Ministry of Defence) had virtually unfettered discretion as to what communications could be intercepted. Under section 6 of the ICA, the Secretary of State, when issuing a warrant for the interception of external communications, was required to make arrangements to ensure that intercepted communications were disclosed and reproduced only to the extent necessary. However, the details of these arrangements were never made accessible to the public. Given this lack of accessibility, the Court concluded that the domestic law did not indicate with sufficient clarity the scope or manner of exercise of the state's very wide discretion to intercept communications. The interference was therefore not in accordance with the law.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

--

-

7500 GBP

7500 GBP

Paid on 12/02/2009

b) Individual measures

Any correspondence intercepted between 1990 and 1997 is now held under the new legislative regime, the Regulation of Investigatory Powers Act 2000 (RIPA) and the Interception of Communications Code of Practice enacted under RIPA (see General Measures below). Consequently, no further individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The Interception of Communications Act 1985 was replaced by the Regulation of Investigatory Powers Act 2000 (RIPA) which provides new regulations for the interception of communications. The European Court has since found in Kennedy against the United Kingdom (Application No. 26839/05) that under RIPA the interception of communications are in conformity with Article 8 (§170). The Court considered that “that the [new] domestic law on interception of internal communications together with the clarifications brought by the publication of the [Interception of Communications] Code [of Practice] indicate with sufficient clarity the procedures for the authorisation and processing of interception warrants as well as the processing, communicating and destruction of intercept material collected. The Court further observes that there is no evidence of any significant shortcomings in the application and operation of the surveillance regime” (§169).

The European Court's judgment was sent out to the competent authorities by a circular of 24 June 2009. The judgment was published in the All England Law Reports ([2008] All ER (D) 09 Jul) and the Times Law Reports (11/07/2009).

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)8446

Execution of the judgment of the European Court of Human Rights

NA. against the United Kingdom

(Application No. 25904/07, judgment of 17 July 2008, final on 06 August 2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the risk that the applicant might be subjected to torture or degrading or inhuman treatment in his country of origin, Sri Lanka, if the removal directions against him were to be enforced (violation of Article 3) (see details in Appendix);

Having invited the government of the United Kingdom to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

      - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - of general measures, preventing similar violations;

      DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)84

Information about the measures to comply with the judgment in the case of

NA. against the United Kingdom

      Introductory case summary

This case concerns the risk that the applicant might be subjected to torture or degrading or inhuman treatment in his country of origin, Sri Lanka, if the removal directions against him were to be enforced (violation of Article 3).

The applicant, an ethnic Tamil, entered the United Kingdom clandestinely on 17 August 1999 and claimed asylum the next day. The United Kingdom refused his application for asylum and issued removal directions against the applicant for 25 June 2007. However, these directions were not enforced because, on that date, the European Court applied Rule 39 of the Rules of the Court indicating that the applicant should not be removed until further notice.

In its judgment, the Court concluded that there was no general risk to Tamils returning to Sri Lanka but considered that an assessment of whether there was a risk had to be made on an individual basis. In the case of the applicant, the individual risk factors when considered cumulatively against the background of the deteriorating security situation meant there would be a violation of Article 3 if he were returned.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

--

--

3601 EUR

3601 EUR

Paid on 04/11/2008

b) Individual measures

The United Kingdom authorities provided information on 14 October 2008, confirming that the removal directions would not be applied to the applicant. The applicant was granted six months leave to remain on a discretionary basis.

      II. General measures

The United Kingdom Border Agency has updated its Operational Guidance Note on Sri Lanka (OGN v7.0) of August 2008 to refer to the European Court’s judgment, highlighting the key points (http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/countryspecificasylumpolicyogns/).

The United Kingdom authorities confirmed that internal guidance was provided to caseworkers within the UK Border Agency who are responsible for considering applications on humanitarian grounds by Sri Lankan Tamils, including those applicants with previous Rule 39 measures, to do so in accordance with the Court's judgment. The domestic courts in the United Kingdom, acting in accordance with the Human Rights Act 1998, are bound to take into account the European Court's judgment when determining similar cases in the future.

The judgment of the European Court has been widely reported including publication in the New Law Journal (N.L.J. 2008, 158(7338), 1322-1323); and The Times, 28/07/2008.

      III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

1 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

2 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

3 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

4 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

5 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

6 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

7 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

8 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

9 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

10 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

11 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

12 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

13 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

14 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

15 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

16 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

17 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

18 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

19 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

20 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

21 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

22 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

23 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

24 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

25 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

26 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

27 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

28 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

29 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

30 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

31 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

32 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

33 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

34 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

35 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

36 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

37 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

38 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

39 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

40 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

41 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

42 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

43 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

44 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

45 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

46 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies



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