CM/Del/OJ/DH(2009)1051 Section 4.1 PUBLIC 2 April 2009
1051st meeting (DH), 17-19 March 2009
- Annotated Agenda1
Public information version
SECTION 4 - CASES RAISING SPECIFIC QUESTIONS
(INDIVIDUAL MEASURES, MEASURES NOT YET DEFINED OR SPECIAL PROBLEMS)
For each case or group of cases, the Deputies adopted the decision presented in a ruled box.
SUB-SECTION 4.1 – SUPERVISION OF INDIVIDUAL MEASURES ONLY2
- 3 cases against Austria
36812/97+ Sylvester, judgment of 24/04/03, final on 24/07/03
The case concerns the failure of the Austrian authorities to enforce a court decision rendered in December 1995 (and final two months later) under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which ordered that the first applicant's daughter (the second applicant, born in 1994), unlawfully taken away by her mother, should be returned to him in the United States. After an unsuccessful attempt to enforce that decision in May 1996, the Austrian courts granted an appeal lodged by the mother and set aside the enforcement of the return order by court decision of August 1996 (final in October 1996) on the grounds that, due to the considerable lapse of time since the two year-old child had lost contact with her father, there would be a risk of grave psychological harm if she was separated from her mother, who had become her main person of reference. Subsequently, the second applicant's mother was awarded sole custody of the second applicant.
The European Court noted that, in cases of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences. A change in the relevant facts may exceptionally justify the non-enforcement of a final return order under The Hague Convention, but the change must not have been brought about by the state's failure to take all measures that could have reasonably been expected. The European Court noted important delays during the period when the domestic courts dealt with the appeal lodged by the mother against the enforcement of the return order and also indicated that the domestic authorities did not take any measures to create the necessary conditions for executing the return order while the lengthy enforcement proceedings were pending. Consequently, the European Court found that the Austrian authorities had failed to take, without delay, all measures that could have been reasonably expected to enforce the return order, and thereby breached the father's and daughter's right to respect for their family life, by allowing the passage of time to determine the outcome of the custody proceedings (violation of Article 8).
1) Return order: The applicant complained that it would be futile for him to repeat before an Austrian court his request for the daughter's return to the United States at the present time. Considering the lapse of time and the evaluation made by the European Court, it is nevertheless accepted by the Deputies that the enforcement of the 1995 return order is today impossible.
2) Visiting rights and contacts:
• Out-of-court agreement: Between 2001 and July 2005, the first applicant visited his daughter on the basis of an out-of-court agreement with the child's mother (approximately 12 days a year). The first applicant insisted on the fact that then existing limitations on the contacts with his daughter were the result of the violation of the Convention for which Austria was responsible. He complained about the visiting arrangements at the time, both on his own and on his daughter's behalf, stressing that he was compelled to accept them due to the inability of the Austrian judicial system to afford him, even if a request for better visiting rights would be accepted, such rights with sufficient speed and enforcement. In support of this position, he maintained that the court proceedings earlier engaged with this aim (until 2001) had demonstrated that, under Austrian law, the mother of the child could lodge appeals suspending for long periods of time the execution of visiting rights obtained and that even if a final decision was obtained, he had no effective way of enforcing it against the will of the mother. Moreover, he expressed his fear that he would loose all contact with his daughter if such proceedings were engaged, as the mother would then abrogate the out-of-court agreement and deny him the possibility to meet the child.
He also complained that he had never been permitted to have unsupervised contacts with the child or take her to visit the United States with the eventual aim of placing such visits on regular basis.
He therefore requested the Committee to ensure that the respondent state would take affirmative, pro-active measures in order to grant him special assistance in reaching a solution which better respected his and his daughter's right to family life than the situation at the time. In reply, the Austrian authorities submitted that he could apply for, and rapidly obtain, to the extent that his requests were granted, effectively enforceable visiting rights. The government, however, indicated that the Austrian authorities could lawfully do nothing unless the applicant lodged a request before the domestic authorities to obtain a change, either in the form of a request to the Federal Ministry of Justice based on Article 21 of the Hague Convention or in the form of an application lodged with the competent District Court for obtaining a visiting order. According to the Austrian authorities, the domestic system afforded effective legal remedies to the first applicant, which had to be used. The Austrian authorities pointed at the fact that in the United States, an arrest warrant against the mother and a US custody order granting sole custody to the father were in force, making such visiting arrangements impossible. The applicant informed the Secretariat that the arrest warrant was withdrawn in October 2005.
• The new procedure concerning access rights: On 04/04/2005, the US authorities, on the applicant’s behalf, sent the Austrian authorities a request based on Article 21 of the Hague Convention concerning access to the second applicant. After having received translations into German, the Austrian Central Authority sent the application to the competent court. The applicant was granted free legal aid and a lawyer was appointed to represent him in the proceedings free of charge. The Austrian authorities indicated that, according to §271 (1) of the Civil Code, a guardian had to be appointed ex officio during the proceedings in the case of a conflict between the interests of the child and her/his legal representative. A guardian was not to be appointed if the interest of the child could be taken care of by the court itself. The Graz District Court obtained an expert opinion by a child psychologist, who recommended that no contact between the applicant and his daughter was to take place until May 2006, except for telephone conversations if the daughter agreed to accept them. The applicant filed a reply to this report. Court hearings took place on 02/06, 06/07 and 26/09/2005. The applicant was absent at this last hearing, for health reasons. Another hearing took place on 22/11/2005, but no decision was taken by the court at that date. The applicant complained of the excessive delays which had occurred during the proceedings, particularly pointing out the long intervals (more than two months) between the hearings. He also complained that, despite his request, no interim contacts had been ordered by the court and that he had not spoken with his daughter since July 2005.
At the 948th meeting (November 2005) the issue was raised whether or not the Committee of Ministers should await the outcome of the proceedings engaged by the applicant before the Austrian courts in order to obtain, as far as possible, restitutio in integrum before closing its supervision of the issue of individual measures. Summing up the debate, the Chairman noted that many delegations had expressed support for Austria’s desire to close examination of this case. He noted, however that this support was not unanimous and that there was also a difference of appreciation between the Austrian delegation and the Secretariat.
The Secretariat recalls on this issue that the practice of the Committee of Ministers in similar situations has always been not to consider closing supervision of the execution of a judgment until the competent domestic authority, before which the execution question has been brought, has taken its decision. In the present situation this would imply continuing supervision.
• Recent development in the domestic procedure concerning access rights: In March 2006, the proceedings were suspended, as the applicant decided to discontinue the pursuit for access to his daughter in legal proceedings and agreed with the mother to take up out-of-court negotiations to reach an agreement on his visiting rights. In April 2007 the Secretariat was informed by the Austrian authorities that the parties were still in contact and the applicant had visited his daughter at Christmas 2006. As of January 2009, neither party has requested the court to resume the proceedings.
The Austrian authorities are of the view (letter of 11/04/2008) that they are prevented from taking further action until one of the parties applies for resumption of the proceedings. As these were suspended at the request of the parties in consensus (Ruhen), they may only be reopened if one of the parties so requests (Article 28 (4) Ausserstreitgesetz); proceedings may not be reopened ex officio.
In January 2009, the applicant submitted that he did not intend to resume legal proceedings as these had harmed his relationship with his daughter to a degree that they are worse now than at the time of the European Court’s judgment. Since July 2005, he has had no telephone contacts as his daughter refused to talk to him. Contacts have been reduced to email exchange once per month on average. Only if the Austrian authorities guaranteed that the court would undertake to work to repair the family relationship between him and his daughter as required by the European Court’s judgment, would he pursue access rights through Austrian courts.
• The applicant’s letter has been sent to the Austrian authorities. Their comments are awaited.
General measures: In the light of the information submitted, the Secretariat considers that this aspect of the case may be considered settled. The Austrian delegation informed the Committee of Ministers of a number of new measures aiming at ensuring the prompt enforcement of return orders or visiting rights under the 1980 Hague Convention.
a) A new law was adopted in November 2003 (entered into force in January 2005), providing for the decrease of the number of courts competent to deal with requests of return based on the Hague Convention (at present all 180 district courts) to only 16 district courts, attached to courts of appeal competent to hear appeals in return proceedings.
The internal rules of the district courts should also provide that return proceedings under the 1980 Hague Convention are dealt with by only one or two judges. This concentration of competence will allow greater specialisation of the judges on this issue and will facilitate training efforts. The law also provides explicitly that decisions in non-contentious procedures relating to the Hague Convention are to be adopted speedily.
b) It is possible under Austrian legislation to request, as a preliminary urgent measure while the return proceedings are pending, a right of access to the child. When ordering such access, the competent court may, under the new 2003 law, decide that visits to the child by the deprived parent should be supervised by a person accompanying the child, in order to prevent the removal of the child and also to re-establish personal contacts in those cases where children have already become to a certain extent alienated from the deprived parent. In bigger urban areas (such as Vienna or Graz), special institutions have been created for holding such visits, which also offer the possibility of supervision by social workers.
c) According to the above legislative reform, in non-contentious proceedings concerning the return of children and concerning access to a child under the Hague Convention, a practicing lawyer will be appointed to represent the applicant free of charge and without pre-condition of a means test already at the initial stage of court proceedings at the first instance.
d) Court orders on custody or visiting rights may also be enforced ex officio under the new 2003 law. Execution will as earlier be ensured through the use of “appropriate coercive measures”, such as coercive fines or detention, to the extent that such measures do not endanger the well-being of a child.
e) Additional safeguards for the prompt enforcement of judicial decisions in this field have been provided by the EC Council Regulation No. 2201/2003 (applicable as from 01/03/2005) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
As regards the particular problem of ensuring the active involvement of the competent state authorities in locating children which are hidden by their parents, the Austrian authorities have stressed that both the Ministry of Justice acting as Central Authority under the Hague Convention and the courts have several possibilities to trace missing children, e.g. through the centralised residence registration system or by checking with regional registries of schools. Furthermore, police authorities may be called upon to help in locating children. The Secretariat considers that the Sylvester judgment together with the direct effect enjoyed by the European Convention on Human Rights and the case-law of the European Court in Austrian law will better ensure that the authorities will avail themselves of their powers so as to provide effective assistance to persons in the applicant's position.
In order to bring Austria's obligations as a result of the Court's judgment to the attention of the competent authorities, the Austrian Ministry of Justice requested the Presidents of the higher courts of Vienna, Graz, Linz and Innsbruck to disseminate the judgment to all judicial authorities within their area of competence. In this connection, the Austrian authorities have also stressed that the Sylvester judgment, as well as all judgments of the European Court, is accessible to judges and state attorneys and to the Central Authority under the 1980 Hague Convention through the Internet database of the Austrian Federal Chancellery. In addition, the judgment of the European Court has been published, notably in the ÖIM-Newsletter 2003/2 and in Ecolex 2003/799.
The Deputies decided to resume consideration of this item at the latest at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual measures, namely the Austrian authorities’ comments on the applicant’s letter.
68354/01 Vereinigung Bildender Künstler, judgment of 25/01/2007, final on 25/04/2007
The case concerns a violation of the right to freedom of expression in that, in February 2000, an injunction was imposed on the applicant association under Section 78 of the Copyright Act prohibiting it form displaying a satirical painting at exhibitions (violation of Article 10).
Individual measures: The European court awarded just satisfaction in respect of pecuniary damage.
• Clarification is awaited as to whether the injunction prohibiting exhibition of the painting is still in place.
General measures: All the requisite measures have been taken (see the case of Wirtschaftstrend Zeitschriften-Verlagsgesellschaft m.b.H (No. 3) (66298/01) (Section 6.2)). The Ministry of Justice, together with the Ludwig Boltzmann Institut für Menschenrechte, regularly organise training courses for judges and public prosecutors concerning the case-law of the European Court on Article 10.
• Assessment: In view of these measures taken and the direct effect of the Convention in Austria, it may be assumed that the requirements of Article 10 of the Convention and the Court’s case-law will be taken into account by the competent authorities in the future, thus preventing new, similar violations.
The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4(morning) December 2009) (DH), in the light of clarification to be provided on individual measures.
3138/04 Arbeiter, judgment of 25/01/2007, final on 25/04/2007
This case concerns a violation of the right to freedom of expression on account of the injunction imposed on the applicant under Article 1330§2 of the Civil Code for making defamatory statements in the print media in 2001 (violation of Article 10).
Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary damage.
• Clarification is awaited as to whether the applicant is still prohibited by the injunction from making the statements in question.
General measures: The requisite measures have been taken (see the case of Wirtschaftstrend Zeitschriften-Verlagsgesellschaft m.b.H No. 2 (58547/00) (Section 6.2). The Ministry of Justice, together with the Ludwig Boltzmann Institut für Menschenrechte, organise regularly training courses for judges and public prosecutors concerning the case law of the European Court on Article 10.
• Assessment: In view of these measures taken and the direct effect of the Convention in Austria, it may be assumed that the requirements of Article 10 of the Convention and the Court’s case-law will be taken into account by the competent authorities in the future, thus preventing new, similar violations.
The Deputies decided to resume consideration this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of clarification to be provided on individual measures.
- 1 case against Azerbaijan
5548/03 Hajiyev, judgment of 16/11/2006, final on 16/02/2007
The case concerns a violation of the applicant's right of access to court (violation of Article 6§1).
The applicant was sentenced to 15 year's imprisonment by a Supreme Court judgment which was final and not subject to appeal at the time of his conviction. After the adoption of a new Code of Criminal Procedure in 2000, he was unable to benefit from the appeal procedures which should have applied to his case according to the provisions of the transitional Law, because of the absence of a clear domestic judicial interpretation of this transitional Law.
Individual measures: On 10/05/2004 the applicant was pardoned and released from prison under a presidential pardon. On 21/05/2004, the Plenary Chamber of the Supreme Court upheld the applicant's request for reduction of his sentence. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.
The applicant states in a letter of 16/05/2007 that on 3/03/2007, he appealed against his conviction under Article 386 of the Code of Criminal Procedure.
• Information provided by the Azerbaijani authorities (letter of 04/11/2008): The Court of Appeal of the Republic of Azerbaijan examined the applicant’s appeals for revision and adopted two decisions on 23 and 25/05/2008.
• Copies of these decisions with a translation would be welcome.
General measures: The European Court's judgment has been translated into Azerbaijani and published in Qanunçuluq, the official gazette of the Ministry of Justice (issue No. 3, March 2007) and in the Azerbaycan Prokurorlugu, the official gazette of the General Prosecutor’s Office (issue No 2, 2007). Moreover the judgment was disseminated among judges and other legal professionals and included in the curricula for the training of judges and candidates for the bench.
The Deputies decided to resume consideration of this item at the latest at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual measures.
- 2 cases against Bulgaria
30985/96 Hassan and Tchaouch, judgment of 26/10/00 - Grand Chamber3
39023/97 Supreme Holy Council of the Muslim community, judgment of 16/12/2004, final on 16/03/2005
- 5 cases against Croatia
- Cases of length of civil proceedings
29159/03 Poje, judgment of 09/03/2006, final on 09/06/2006
32264/03 Butković, judgment of 24/05/2007, final on 24/08/2007, rectified on 05/09/2007
26455/04 Plazonić, judgment of 06/03/2008, final on 06/06/2008
43709/02 Raguž, judgment of 10/11/2005, final on 10/02/2006
5129/03 Sukobljević, judgment of 02/11/2006, final on 02/02/2007
These cases concern the excessive length of certain civil proceedings (violations of Article 6§1). The proceedings in the Poje, Raguz and Sukobljević began, respectively, in February 1992, December 1989 and March 1993 and were still pending when the European Court gave its judgments.
The Butković case concerns three sets of proceeding related to the applicant’s flat. A set of proceedings concerning the eviction of third parties from her flat began in June 1997 and ended in October 2004. Two other sets of proceedings concerning the regulation of rent and the lease contract began respectively in June 1997 and in October 1998 and were still pending when the European Court gave its judgment.
The Plazonić case concerns two sets of proceedings, including the enforcement proceedings phase, which began in October 1996 and May 1997 and were still pending when the European Court gave its judgment. In both sets of proceedings the applicant’s complaints about the excessive length of proceedings were dismissed (in December 2004 and April 2005) by the Constitutional Court which considered not excessive the length of these proceedings.
The Poje and the Raguž cases also concern the lack of an effective remedy at the applicants' disposal against the excessive length of the proceedings in question (violation of Article 13). In the Poje case the European Court noted than even though the applicants had lodged a constitutional complaint while their proceedings had still been pending, the Constitutional Court dismissed the complaint as inadmissible in 2003, once the proceedings had ended, without examining their length until that time. In the Raguž case the European Court concluded that the practice of the Constitutional Court in the circumstances of the present case rendered an otherwise effective remedy ineffective, since the Constitutional Court only took into consideration the length of the proceedings before the instance before which the proceedings were pending when the constitutional complaint was lodged, but failed to consider the preceding period.
In the Poje case, the first-instance court delivered its judgment on 21/04/2006. The proceedings are now pending at appeal. The competent courts' attention has been drawn to the European Court's findings with a view to accelerating these proceedings as far as possible.
In the Sukobljević case the authorities asked the competent courts to provide information about the current state of the proceedings in question.
The proceedings in the Butković, the Plazonić and the Raguž cases also remain pending.
• Information is awaited on the state of the pending proceedings and if appropriate on their acceleration.
1) Violations of Article 6§1: The cases present similarities to that of Horvat (judgment of 26/07/2001) closed by Final Resolution ResDH(2005)60, following:
- the adoption of general measures to improve the efficiency of the judicial system and avoid new violations (Act amending the Act on Civil Procedure, adopted on 14/07/2003, which aims at strengthening procedural discipline and simplifying civil proceedings) and
- the introduction of an effective remedy against the excessive length of judicial proceedings (new Article 63 of the Act on the Constitutional Court, in force since 15/03/2002).
In addition, it might be noted that following the amendments to the Law on the Judiciary, which entered into force on 29/12/2005, the Constitutional Court is no longer competent to examine at first instance complaints against the excessive length of judicial proceedings. Instead, the courts superior to those dealing with the merits of a case will have such competence. Their decisions concerning such complaints may be appealed before the Supreme Court and the decisions of the latter before the Constitutional Court.
• Assessment: No other measure appears to be necessary.
2) Violation of Article 13: it should be noted that the Constitutional Court changed its practice of dismissing complaints against the excessive length of judicial proceedings once the proceedings had finished even if such complaints had been lodged while the proceedings were been pending (see decision No. U-IIIA-603/2003 of the Constitutional Court of 24/09/2004).
The judgment of the European Court in the Raguž case was published on the internet site of the Ministry of Justice (www.pravosudje.hr) and in the legal journal Case-law of the European Court of Human Rights, No. 2 (June-December 2005). It was distributed to all courts competent to examine such complaints since 2005 and all judges of the Constitutional Court, so as to allow these courts to take into consideration the criteria of the Convention concerning the calculation of the length of proceedings. Further, the Judicial Academy organised training (January-June 2006) on Protection of the right to a trial within reasonable time. The training included one seminar and four one-day workshops held in Zagreb, Rijeka, Osijek and Split.
• Assessment: No other measure appears to be necessary.
The Deputies decided to resume consideration of these items at the latest at their 1065th meeting (15-16 September 2009) (DH), in the light of further information to be provided on individual measures, namely the progress of the proceedings and, if possible, their acceleration.
- 2 cases against the Czech Republic
55179/00 Glaser, judgment of 14/02/2008, final on 14/05/2008
This case concerns the violation of the applicant’s right of access to a court due to the Constitutional Court’s restrictive interpretation of its admissibility rules. In 1999, the applicant lodged a constitutional appeal alleging the unfairness of proceedings which he had brought against the Jewish Museum in Prague to recover a collection of Arab works of art, deposited with the museum in 1948. The Constitutional Court declared his appeal inadmissible in view of the fact that he had failed to exhaust statutory remedies, as he had not lodged a complaint for nullity (violation of Article 6§1).
The European Court found that the Czech Constitutional Court had interpreted the procedural rule at issue in such a restrictive manner that the applicant had been deprived of his right of access to a court.
Individual measures: The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. It dismissed his claim for pecuniary damage, corresponding to the alleged value of the art collection, for lack of a causal link between the violation of Article 6 found and the alleged pecuniary damage. In this respect, the European Court found no violation of Article 1 of Protocol No. 1, considering that the applicant had failed to demonstrate with sufficient certainty his original title to the items he sought to recover.
• Information submitted by the Czech authorities (letter of 21/11/2008): The Czech authorities underlined the fact that the applicant’s case had been examined on the merits at two levels of national jurisdiction and that the European Court rejected his complaints under Article 1 of Protocol No. 1. Furthermore, the applicant has submitted no claim for any individual measures.
• Assessment: In these circumstances, no further individual measures seem necessary.
General measures: Following three earlier similar cases (see Běleš and others group, Final Resolution CM/ResDH (2007)115, adopted on 31/10/2007; Zvolský and Zvolská, Final Resolution CM/ResDH(2007)30, adopted on 20/04/2007, and Vodárenská Akciová Společnost, A.S., Final Resolution CM/ResDH(2008)27, adopted on 27/03/2008), the Czech authorities adopted a number of measures to prevent new violations.
(a) The plenary of the Constitutional Court changed its practice in 2003 (communication published in the Official Journal No. 32/2003 of 03/02/2003) by allowing the simultaneous lodging of an extraordinary appeal and of a constitutional appeal directed against the decision of a lower jurisdiction which has attained legal force in relation to the subject (see §21 of the judgment of the European Court in the case of Vodárenská Akciová Společnost, A.S.).
(b) Subsequently Parliament adopted Law No. 83/2004 (which entered into force on 01/04/2004) which amended previous Law No. 182/1993 on the Constitutional Court. According to the new law (Article 75§1), an extraordinary appeal of which the admissibility depends only on the discretionary assessment of the competent authority, does not necessarily have to be exhausted before referring the case to the Constitutional Court. Moreover, if an extraordinary appeal is declared inadmissible by the competent authority only on the basis of its discretionary assessment, a constitutional appeal may be lodged within 60 days starting from the notification of the decision relating to the admissibility of the appeal at issue (Article 72§4).
The violation in the present case occurred before these modifications.
The European Court’s judgment was translated and published on the website of the Ministry of Justice (www.justice.cz) and sent out to the authorities concerned.
• Assessment: No further general measures seem necessary.
1. noted that no further measure seemed to be required for the execution of this judgment;
2. decided to resume consideration of this item with a view to examining the possibility of closing this case, once the just satisfaction has been paid.
- Case concerning the lack of access to Constitutional Court due to its excessively formalistic interpretation of the admissibility rules
18806/02 Ješina, judgment of 26/07/2007, final on 10/12/2007
This case concerns the lack of access to a court caused by a declaration of inadmissibility of the applicant’s constitutional appeal for failure to exhaust statutory remedies in the year 2001 (violation of Article 6§1). The applicant had lodged a constitutional appeal alleging the unfairness of proceedings which had been brought against him for damages caused by a road traffic accident.
The European Court found that the Czech Constitutional Court had interpreted a procedural rule in such restrictive manner that the applicant had been deprived of his right of access to a court.
Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained. The Court found no causal link between the alleged pecuniary damage claimed by the applicant and the violation of Article 6 found, and it concluded that it could not further speculate on what would have been the outcome of the proceedings had the Constitutional Court accepted and examined the constitutional complaint lodged by the applicant.
• Information provided by the Czech authorities (letter of 16/01/2009) is currently being assessed.
General measures: This case presents similarities to the Běleš and others group (judgment of 12/11/2002, final resolution CM/ResDH (2007)115) in which general measures have been adopted: the practice of the Czech Constitutional Court as well as the legislation concerning the admissibility requirements of constitutional appeals were modified in 2003 and 2004. The above violation occurred before those modifications.
• Assessment: no further general measure appears necessary.
1. decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of an assessment of the information provided by the authorities on individual measures;
2. recalled that the general measures have been adopted.
- 2 cases against Greece
14263/04 Rompoti and Rompotis, judgment of 25/01/2007, final on 09/07/2007
The case concerns the administrative authorities’ failure to comply with a final judgment of the Athens Administrative Court issued in 2003 (violation of Article 6 §1).
The European Court noted in particular that, instead of proceeding with the execution of the judgment as soon as it became final, the authorities - taking about seven months to do so - requested the applicant to supply a long list of documents of which they should have been in possession themselves.
• The authorities are invited to provide information as to the enforcement of the domestic judgment.
General measures: The general measures to prevent similar violations have already been adopted in the Hornsby group of cases (18357/91), which was closed by Resolution ResDH(2004)81.
The Deputies decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of information to be provided on individual measures, namely the enforcement of the domestic judgment.
68138/01 Zazanis and others, judgment of 18/11/2004, final on 30/03/2005
This case concerns the failure by the municipality of Loutraki to comply with a judgment of the Council of State given in 2000, by which the latter had set aside the administration's tacit refusal (on grounds of incomplete information) to grant a building company permission to cut down trees with a view to the construction of a building on land owned by the three applicants. The Council of State, considering that the file submitted had been complete, referred it back to the administration for a decision. The European Court noted that the authority's imposition of new conditions subsequent to the above- mentioned judgment, especially an ad hoc modification of a construction coefficient, amounted to refusal to comply with the judgment. Moreover, the Minister of Environment's decision of 2003 to reclassify the land in question as a “public use area” was tantamount to expropriation, rendering execution of the Council of State's judgment pointless (violation of Article 6§1).
The case also concerns the lack of an effective domestic remedy whereby the applicants might secure the execution of the judgment (violation of Article 13).
• Information provided by the Greek authorities (letters of 02/01/2006 and 07/02/2007): Proceedings for the expropriation of the applicants' land have been brought by the competent local authorities. On 09/11/2005 there was a hearing before the First-Instance Court of Corinth to set the unit price for the applicants' compensation. This court delivered judgment No. 86/2006 against which the applicants have appealed to the Tripoli Court of Appeal. A hearing was scheduled for 17/02/2007.
• More information is awaited on the outcome of these proceedings.
Finally, it is to be noted that the European Court only awarded the applicants just satisfaction in respect of non-pecuniary damages. With regard to pecuniary damages, the applicants have reserved their right to lodge a new application with the Court for a violation of Article 1 of Protocol No. 1 (§51 of the judgment).
General measures: See ResDH(2004)81 on the Hornsby case and others (18357/91).
The European Court's judgment has been promptly translated and published on the site of the State Legal Council (www.nsk.gr).
The Deputies decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of further information to be provided on individual measures, namely the outcome of the pending proceedings.
- 1 case against Iceland
60669/00 Ásmundsson Kjartan, judgment of 12/10/2004, final on 30/03/2005
The case concerns discriminatory interference with applicant’s right to respect for his property (violation of Article 1 of Protocol No. 1). Following an industrial accident in 1978, the applicant was assessed to be 100% disabled and incapable of continuing to work as a seaman. He was granted a disability pension. In 1992, the method of evaluating disability was changed so that disability was no longer assessed in relation to the ability to perform the same work, but rather work in general. Accordingly, the applicant’s degree of disability was reassessed at 25% and, after a transitional period of 5 years, his right to a disability pension lapsed, on 01/07/1997.
The European Court found that the new pension rules had been prompted by legitimate concerns and were based on objective criteria. However, the fact that the vast majority of persons in receipt of disability pensions continued to receive benefits as before, whilst a small minority (54 including the applicant) had totally lost their pension entitlement, could be considered as excessively and disproportionately differential treatment.
Individual measures: The European Court has awarded just satisfaction compensating the loss of the applicant’s disability pension entitlements. In September 2005 the applicant wrote to the Secretariat claiming that the violation found in this case also affected his old-age pension and that thus all negative consequences of the violation have not yet been remedied. By letter of 10/02/2006, the Icelandic authorities pointed out that this case concerns the applicant’s disability pension entitlement and not his old-age pension entitlement. This issue has therefore not been addressed by the European Court and judicial remedies have not been exhausted in this respect. Furthermore, since the applicant has not yet reached the required age, it is impossible to say whether he has lost or will lose any rights since his right to an old-age pension has not yet been established.
• Information provided by the Icelandic authorities (18/12/2008): They underlined the points previously made in relation to the scope of the judgment and the fact that the applicant’s entitlement to an old-age pension had not yet been determined whilst emphasising that in any event, the payment of the just satisfaction represented compensation for all financial consequences of the violation.
• This information is currently being assessed by the Secretariat.
General measures: According to the information received from the Icelandic delegation, a few persons in a situation similar to that of the applicant have contacted the Ministry of Justice. The Ministry has advised them to contact the office of Attorney General in order to claim for compensation. No such compensation has, however, yet been paid to any of these people since no-one has been in exactly the same situation as the applicant. The Icelandic authorities consider that the remaining persons concerned (about 53) are sufficiently well informed of the possibility to apply to the Attorney General for compensation since the judgment of the European Court was published in Icelandic on the homepage of the Ministry of Justice.
• Assessment: taking into consideration the information provided by the Icelandic government on the measures taken to remedy to the violation (publication of the judgment on internet and possibility to apply for compensation at domestic level), it seems that no further measure is necessary.
The Deputies decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of the information provided on individual measures.
- 4 cases against Italy
30595/02 Bove, judgment of 30/06/2005, final on 30/11/2005
The case concerns the violation of the applicant’s right to respect for his family life on account of the failure by the Italian authorities to take adequate measures to implement court decisions ordering the progressive re-establishment of relations between the applicant and his daughter (violation of Article 8).
The child was recognised by both parents at her birth on 19/01/1995. On 22/09/1996, the Naples Youth Court gave custody to the mother, with visiting rights to the father. Because of a dispute between the parents, the court also instructed the social services to supervise the visits. For some time after that, the court extended the applicant's visiting rights on the basis of favourable reports by psychologists and social workers.
However, in June 2000, as an urgent, temporary measure, the same court restricted encounters between the applicant and his daughter, in response to allegations by the child's mother that the father and two of his friends had sexually abused the child. The proceedings against the applicant's two friends collapsed in April 2001. The paternal grandfather died in January 2003. Later that month, the Naples Appeal Court decided to leave custody with the mother and laid down a timetable for progressive resumption of contact between the applicant and his daughter under structured and controlled conditions.
Despite various judgments ordering progressive resumption of relations between father and daughter, he had not seen her since September 2002: the situation had deteriorated to the point that the relationship no longer existed.
For the European Court, the key issue was whether the national authorities had done all they could to enforce the decision of the Naples Children's Court (§ 47). It considered that their failure to take action had made the applicant appeal repeatedly to achieve respect for his rights. The European Court found that the failure to respect his visiting rights from September 2002 onwards constituted a violation of his right to respect for his family life.
Individual measures: In January and March 2006, two meetings took place between the daughter and a judge in the presence of a psychological adviser. The conclusion was that the daughter's refusal to see her father resulted from the negative image inculcated by the mother. Her refusal could not be altered without a change in the mother's attitude. As a result, the Children's Section of the Naples Court of Appeal issued a decree on 22/03/2006 in which it:
- recognised both parents' authority in respect of the child;
- vested sole custody of the daughter with the mother;
- suspended contacts between father and daughter;
- ordered mediation between the parents to be continued.
The court of appeal’s decision was primarily motivated by the best interests of the child, which in the event of insuperable conflict may override those of the parent, and has made it necessary to suspend the contacts in order not to harm the child’s health and development.
Family mediation developed systematically and regularly for more than a year. Thus in 2006 and 2007, encounters between the parents were held in an increasingly constructive spirit. Both parents have indicated their agreement to continuing in this way.
The applicant's counsel however complained of the court decision suspending father/daughter contacts and indicated that the mother had stopped encounters with the father in the second half of 2007.
A last social service report (14/03/2008) made clear that, since the 2007 summer holidays, only one meeting has taken place between the parents, in November 2007, due to the mother's refusal to take part in the others. At the 14/03/2008 meeting, the mother explained her refusal to continue the mediation process as being the consequence of the attitude of her daughter, who did not feel that her mother was protecting her against her father’s attempts to meet her.
• Information provided by the Italian authorities (29/10/2008): The authorities consider the 2006 judicial decision ordering the suspension of contacts and mediation between the parents as a precondition to their resumption, to be a new decision which has not been dealt with by the European Court. Furthermore, according to the authorities, this decision is in conformity with the Court’s case-law (e.g. Covezzi and Morselli, judgement of 24/09/2003, §119, Gianolini, decision of inadmissibility of 29/08/02), since it has been adopted in consequence of the evolution of the situation having regard to the child’s best interest; moreover, the applicant never contested it. The enforcement of the 2006 decision being difficult, the authorities consider it is up to the applicant from now on to re-launch proceedings through the different legal instruments at his disposal, such as Article 709ter of the Civil Code on disputes between parents as to the exercise of parental authority, which cannot be raised ex officio.
No information has been received so far from the applicant’s lawyer on his client’s intentions.
• Assessment:: The Italian authorities also mention that Articles 330, 333, and 336 of the Civil Code concerning parental authority, and also Article 337 on the guardianship judge, who under Article 344 § 2 supervises the enforcement of visiting rights, could be used too, also by the authorities themselves, under the circumstances of the present case.
• Information is awaited on the initiatives taken or envisaged by the Italian authorities to continue to ensure the enforcement of the 2006 decision.
General measures: The European Court's judgment has been published in Italian in the human rights sector of the website of the Ministry of Justice: http://www.giustizia.it/pol_internaz/tutela/tutela_du_indice.htm.
1. noted that the mediation between the parents to allow a possible re-establishment of contacts between the applicant and his daughter has now been interrupted because of the refusal of the child’s mother to continue to participate;
2. decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of information awaited on individual measures, in particular whether the authorities had made use of the possibilities available at national level to continue ensuring the enforcement of the 2006 decision of the Naples Court of Appeal.
30961/03 Sannino, judgment of 27/04/2006, final on 13/09/20064
- Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments ordering the demolition of buildings
77606/01 Paudicio, judgment of 24/05/2007, final on 12/11/2007
6870/03 Vitiello, judgment of 17/07/2007, final on 17/10/2007
These cases concern a breach of the applicants’ right to the peaceful enjoyment of their possessions on the ground of the sustained failure by administrative authorities, without any legal basis, to enforce final judicial decisions ordering them to proceed to the demolition of illegal buildings (violations of Article 1 of Protocol No. 1).
Individual measures: As regards pecuniary damages, “the Court held that, taking into account the circumstances of the case and leaving aside the question of the demolition, pecuniary damages would constitute adequate compensation for the prejudice suffered by the applicant. In this respect, the Court notes that the criminal courts had definitively determined that the applicant had suffered pecuniary damage as a consequence of the illegal construction built by the neighbours… However, taking into consideration that, in conformity with the domestic courts’ decision, the applicant may bring civil proceedings to claim pecuniary damages, the Court considers there is no need for it to award a sum as pecuniary damages” (§59 of the Paudicio judgment, as well as §53 of the Vitiello judgment). The Court awarded the applicant just satisfaction in respect of the non-pecuniary damages sustained.
The government pointed out (23/06/2008) that, in pursuance of Article 46 of the Convention, the demolition of the illegal building did not follow from the European Court judgment by way of individual measure. It also recalled that the European Court, under Article 41, concluded that pecuniary damages to be obtained through proceedings before domestic civil courts constituted adequate compensation for the prejudice suffered by the applicants.
• Assessment: In application of the subsidiarity principle, it is up to national authorities to compensate the prejudice suffered by the applicants in the framework of civil proceedings. However, according to Article 46 of the Convention, the respondent state has an obligation, beyond the payment of just satisfaction, to adopt under the Committee of Ministers’ supervision, individual measures with a view to putting an end to the violations and erasing the consequences, if possible by restitutio in integrum. In cases where a violation has been established on account of the failure to enforce a domestic judgement, restitutio in integrum is, in principle, achieved when this judgment is executed.
• Information is needed on the modalities envisaged by the authorities to enforce the final judicial decisions at issue in the present cases.
General measures: See the case of Antonetto (15918/89) (section 6.2).
A summary of the judgments has been published in Italian in the database on the European Court of Human Rights database of the Court of Cassation (www.italgiure.giustizia.it). This web site is widely used by all those who practice the law profession in Italy, civil servants, lawyers, prosecutors and judges alike.
• Assessment: no further individual measure seems necessary.
The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4(morning) December 2009) (DH), in the light of further information to be provided on individual measures, in particular the modalities envisaged by the authorities to enforce the final judicial decisions at issue in these cases.
- 1 case against Luxembourg
302/04 Lemmer and Neiertz, judgment of 13/05/2008 – Friendly settlement
This case concerns the length of civil proceedings which began in 1990 and were still pending when the friendly settlement was reached (complaint lodged under Article 6§1).
The respondent State undertook, first, to pay a certain amount to the applicant and, second, to take the necessary measures to make sure that the proceedings reach an end as soon as possible, taking into account the requirements of the proper administration of justice.
The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4(morning) December 2009) (DH), with a view to examining the progress of the national proceedings.
- 1 case against Malta
26111/02 Mizzi, judgment of 12/01/2006, final on 12/04/2006
The case concerns a violation of the applicant’s right of access to a court in that he was denied the possibility of obtaining a judicial determination of his claim that he was not the biological father of a child born by his wife in 1967 several months after their separation (violation of Article 6§1).
Until 1990, the applicant was prevented from bringing such a claim since the Maltese Civil Code permitted the denial of paternity only in cases of adultery and where the birth had been concealed, which was not the case here. Following an amendment, the law permitted claims in paternity cases within 3 months after birth. This time-limit was raised to 6 months in 1993. Thus the applicant was barred at the material time from using this remedy. Under the new rules, evidence of adultery and of any other fact tending to exclude paternity was sufficient to bring an action for disavowal.
Despite these legal limitations, the Civil Court in 1997 accepted the applicant's request based on DNA tests establishing that he was not the child's father, holding that Maltese law violated Article 8 of the Convention. This judgment was quashed by the Constitutional Court.
The European Court held that, given the wording of the relevant provisions of the Civil Code coupled with the Constitutional Court’s refusal to grant the applicant leave for introducing an action for disavowal, the practical impossibility of denying paternity impaired the essence of the applicant’s right to a court (§80 and §89 of the judgment).
The case also concerns the violation of the applicant’s right to respect for his private life since a fair balance has not been struck between the general interest of the protection of the legal certainty of family relationships and the applicant's right to have the legal presumption of his paternity reviewed in the light of the biological evidence (violation of Article 8).
Finally, the case concerns the violation of the prohibition of discrimination in that, while the applicant was subject to a stricter time-limit than the other interested parties, whose right to challenge the legitimacy of a child born in wedlock were not subject to any time-limit (violation of Article 14 in conjunction with Articles 6§1 and 8).
• Information provided by the Maltese authorities: It seems unlikely that a request for reopening under Article 811 of the Code of Organisation and Civil Procedure, which makes it possible to correct the “wrong application of the law”, would succeed. However, legislative reform is already under way to enable the applicant to request new paternity proceedings (see details below).
• Information has been awaited since October 2006 as to whether the applicant was able to bring his disavowal claim before a domestic court.
General measures (No examination at the present meeting):
• Information provided by the Maltese authorities: On 9/06/2006 a Bill to amend Article 70 of the Maltese Civil Code was published. The new Clause 4 will entitle the applicant as well as other persons in the same position to repudiate a child born before 1/12/1993 within an absolute time limit, namely until the 31/12/2006. The latest information received on 12/09/2006 was that the bill had been debated.
• Information is awaited on the progress of the law reform, in particular with regard to the time-limit envisaged. In this context it should be recalled that the European Court found a violation of Article 14 because other interested parties are not subject to any time-limits and indicated that time limits imposed should meet the requirements of the Convention (§§129 -136 of the judgment).
In this context, the experience gained in the very similar case of Shofman against the Russian Federation (Section 6.2) might be taken into account: in that case the Court ruled that a time limit of one year after birth violates Article 8 and noted that the new Family Code in force since 1996 sets no time limit.
All judgments of the European Court against Malta are habitually disseminated among the competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (mjha.gov.mt/ministry/links.html) which provides for a direct link to the Court's website.
The Deputies decided to resume consideration of this item at the latest at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on the individual and general measures.
- 1 case against the Netherlands
60665/00 Tuquabo-Tekle and others, judgment of 01/12/2005, final on 01/03/20065
- 2 cases against Poland
42049/98 Związek Nauczycielstwa Polskiego, judgment of 21/10/2004, final on 02/02/2005
This case concerns the violation of the right of access to court (violation of Article 6§1). In 1964, the applicant, a Polish association, was given an expropriated property. On the basis of the provisions of the Law of 1989 on Relations between the State and the Catholic Church in Poland, the Warsaw Property Commission ordered the applicant to return the property to its former owner, a religious association, in return for a sum in compensation which did not cover all the outlays for the maintenance and renovation incurred by the applicant during 25 years of use of the property. The Property Commission declared itself incompetent to examine the claims of the applicant association, so the applicant filed an action against the State Treasury claiming the outstanding expenses. Following an interpretation of the law given by the Polish Supreme Court, this action was dismissed by a final judgment of the Rzeszów Court of Appeal of 05/12/1996 on the grounds that the 1989 law had established a mechanism for resolving disputes through the Commission, excluding any judicial competence as a matter of principle, particularly as the State Treasury was no longer the owner of the property. The Supreme Court thus excluded any possibility for the applicant to bring an action before a court in this case, either against the State Treasury or the religious association.
The European Court concluded that restricting access to a court was disproportionate, particularly considering what was at stake for the applicant.
• Information provided by the Polish authorities: The applicant association might still bring an action against the religious association which is the current owner of the property under Article 226 of the Civil Code. According to this provision, the holder of a property may ask the owner to reimburse maintenance costs after the property has been returned.
According to the Polish authorities, despite the judicial decisions already delivered, this appeal was still available. First of all, the judgment of the Rzeszów Court of Appeal of 05/12/1996 did not concern the merits of the case and secondly, according to Article 390§2 of the Code of Civil Procedure, a resolution on a legal question by the Supreme Court is binding only on the parties to the case (the action against the State Treasury in this case). The Polish courts had committed an error in dismissing the applicant's action. This mistake was linked to that of the Warsaw Property Commission, which had wrongly ordered the Public Treasury to reimburse the maintenance and renovation costs to the applicant.
It should be noted that on the basis of Article 229 of the Civil Code, the claims of previous owners of the property concerning maintenance costs are barred one year after the return of the property to its owner. Following the Property Commission's decision, the applicant returned the property to the religious association on 10/11/92 and 31/03/93. Therefore its claims have already been barred.
However, the government underlines that the barring by limitation does not have to be taken into consideration ex officio by the judge and that in this case it could be invoked by the defendant, i.e. the current owner of the property. If that was the case, the judge could still reject this exception as incompatible with the principle of “common life in society”, as set out in Article 5 of the Civil Code.
• Information provided by the applicant association (letter of 25/06/2007): According to the applicant association, a re-examination of its claims should be allowed following the European Court's judgment. After the judgment was delivered, the applicant association lodged a motion to reopen the domestic proceedings on the basis of Articles 399 and 401 of the Code of Civil Procedure. On 15/04/2005 the Supreme Court declared this motion inadmissible, not being provided by law (see also the case of Podbielski and PPU Polpure, (39199/98) judgment of 26/07/2005, final on 30/11/2005; Section 6.2).
According to the applicant association, an action against the current owner of the property would be unsuccessful because the matter is time-barred. It is unlikemy that the judge would reject this objection, on the basis of Article 5 of the Civil Code, which is accepted in practice mainly in labour law cases.
The applicant association subsequently lodged an action against the State Treasury for payment of compensation for remaining expenses. These proceedings are pending before the Warsaw Regional Court.
• Recent development (information provided by the authorities on 08/03/2008 and 03/10/2008): proceedings against the State Treasury were instituted in August 2005 by the applicant association and are currently under the administrative supervision of the President of the Warsaw Regional Court. A hearing was to take place in October 2008.
• Information is awaited on the state and scope of these proceedings and on other possible legal avenues available to the applicant association to press its claims.
• Measures taken: The judgment of the European Court was published on the website of the Ministry of Justice http://www.ms.gov.pl and sent out to the judges of the Civil Chamber of the Supreme Court and to the presidents of the appeal courts, along with a circular.
• Assessment: no other measure appears to be necessary.
The Deputies decided to resume consideration of this item at the latest at their 1065th meeting (15-16 September 2009) (DH), in the light of the outcome of bilateral contacts on individual measures as well as further information to be provided concerning the situation of the applicant.
34049/96 Zwierzyński, judgment of 19/06/2001, final on 19/09/2001 and of 02/07/2002, final on 06/11/2002 (Article 41), revised on 06/03/2007, final on 24/09/2007
The case concerns the excessive length of certain civil proceedings lodged by the State Treasury in 1992 and aiming at acquisition through adverse possession of title to some property illegally expropriated in 1952, at which time the registered owner of the building was the applicant’s father. When the European Court delivered its judgment, the case was still pending before the Lomza district Court and had already lasted, within the meaning of the Convention, 8 years and 1 month (violation of Article 6§1).
The European Court also found an infringement of the applicant’s right to the peaceful enjoyment of his possessions in particular due to the fact that the state organs continued to occupy the building at issue in spite of an administrative decision retrospectively restoring the title to the property to the applicant’s father, and brought directly or implicitly court proceedings, without any reason of “public interest”, which have resulted in the postponement of the restitution of the property (violation of Article 1 of Protocol No. 1).
Individual measures: The proceedings for acquisition through adverse possession of title of the building at issue, at the origin of the violation of Article 6§1, ended on 21/09/2001, when the Lomza district Court dismissed the Treasury’s action.
Under Article 41 of the Convention, the European Court decided that the respondent state had to restore the property to the applicant within three months from the date at which the judgment became final. Failing such restitution, the state had to pay the applicant, within the same time-limit, a sum of money corresponding to the value of the building, i.e. 60 500 euros (section 1 of the operative part of the judgment of 02/07/2002). Moreover, the state had to pay, within the same time-limit, 100 000 euros for the pecuniary damage caused by the disuse of the property. The time-limit expired on 06/02/2003.
In 2002, the Polish delegation informed the Committee that the government had taken steps to return the building at issue to the applicant, who refused it however, preferring to be paid the pecuniary damage afforded by the Court. A notarised deed has been drawn up to this effect.
Moreover, the Polish government twice requested the revision of the European Court’s judgments (on the merits and on Article 41), due to the fact that proceedings had been lodged before the national courts by third persons to contest the property right of the applicant’s father to the building at issue at the time of the expropriation. The government’s requests for revision were rejected by the European Court on 22/01/2003 and 24/06/2003.
A final judgment had been rendered by the domestic courts in November 2003, ruling that the property at issue had not constituted a part of the succession after the applicant’s parents. Deducing from this that the applicant cannot be considered as the owner of the property, the delegation concluded that he is not entitled to the restitution of the property or to compensation and asked the Committee of Ministers to postpone the examination of the case until the outcome of the new revision procedure that the authorities envisaged to open.
A third request for revision, submitted to the European Court on this ground on 19/01/2004, was rejected on 28/01/2005. On 22/04/2005, the Polish government submitted to the European Court additional observations for the reconsideration of this revision request.
The Polish authorities also asked the Committee of Ministers to adjourn the discussion of the case until the European Court’s position was clearly and comprehensively reconsidered.
The government’s request of 22/04/2005 was rejected by the European Court by a final judgment of 06/03/2007. The Court recalled that the modalities of restoring the property in question and payment of the amounts awarded in the judgment under Article 41 (of 02/07/2002) are exclusively within the competence of the Ministers’ Deputies (§22 of the judgment of 06/03/2007). The Polish government’s request for the referral of the judgment of 06/03/2007 before the Grand Chamber was rejected on 24/09/2007.
On 14/12/2007 the applicant was paid 100 000 euros in respect of the pecuniary damage caused by the loss of use of the property.
• Bilateral contacts are under way between the Secretariat and the Polish authorities regarding the outstanding measures envisaged for the execution of the judgments here at stake (see in particular Section 1 of the operative part of the judgment of 02/07/2002).
1) Violation of Article 6§1: the case presents similarities to the other cases relating to the excessive length of civil proceedings (including Podbielski (27916/95), 1059th meeting, June 2009).
2) Violation of Article 1 of Protocol No. 1: The judgment of the European Court was communicated to the Ministry of Justice for dissemination to courts, and to the Ministry of Internal Affairs for dissemination, in particular to the police. It has also been distributed to judges and prosecutors.
Moreover, the judgment was published in the Bulletin of the Council of Europe Information Office in Warsaw, as well as on its Internet website.
The Deputies decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), for consideration of the issue of individual measures.
- 1 case against Portugal
- Case concerning freedom of expression
11182/03+ Colaço Mestre and SIC - Sociedade Independente de Communicação, S.A., judgment of 26/04/2007, final on 26/07/2007
This case concerns the violation of the right to freedom of expression of the applicants, a journalist and the company owning the national television station, SIC, on account of their conviction for criminal libel for airing an interview implicating a public personality, Mr Pinto da Costa (violation of Article 10).
In the context of a national debate going on at the time in Portugal concerning the possible corruption of football referees, the first applicant conducted an interview with the Director-General of UEFA (Union of European Football Associations), asking him questions concerning Mr Pinto da Costa, the President of the Portuguese League of Professional Football and of the football club FC Porto. The interview was aired on the SIC television station as part of a football programme.
The Tribunal of Oporto convicted both applicants sentencing the first applicant to pay a fine and ordering both to pay Mr Pinto da Costa an amount in damages. The court of appeal upheld this judgment.
The European Court found that the interview in question was conducted at a time when a debate of general interest was ongoing in Portugal and that the questions asked by the first applicant concerned the public, professional activities of a well-known public figure. The Court thus found that the questions did not cross the ethical limits of journalism, not least because the interview was aired as part of a programme on football, aimed at a public that was supposedly well informed on the matter, and because the applicant in question did not ask the questions in his mother tongue, but in French, which might have influenced his formulations.
The Court further considered that sanctioning a journalist for asking his questions in a certain manner, as well as the channel that employs him, could seriously hinder the contribution of the press to discussions on problems of general interest and should not happen without particularly serious reasons. Therefore, the Court concluded that the respondent state had failed to strike a correct balance between the need to protect the applicants' right to freedom of expression and the need to protect the rights and the reputation of the complainant.
Individual measures: The Court awarded the applicants just satisfaction that included the fine the first applicant was sentenced to, but did not include the amount the applicants had to pay in damages to Mr Pinto da Costa in the absence of proof of payment.
The applicants’ lawyer indicated (19/01/2009) that, according to Article 449 of the Code of Criminal Procedure, which permits the re-examination of domestic judgments giving the status of res judicata, following a judgment of the European Court finding a violation, the applicants will ask for the re-examination of the domestic judgment.
• Additional information is awaited in this respect.
General measures: See the case of De Almeida Azevedo (section 6.2).
The European Court's judgment has been translated into Portuguese and is available on the Internet site of the Cabinet of Documentation and Comparative Law (www.gddc.pt) which comes under the Prosecutor General of the Republic. Moreover, freedom of expression has been dealt with in university courses, seminars and continuous training courses organised by Legal Studies Centre (Coimbra) in 2007 and 2008.
The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4(morning) December 2009) (DH), in the light of information to be provided on individual measures.
- 1 case against Romania
37284/02 Lafargue, judgment of 13/07/2006, final on 13/10/2006
The case concerns a violation of the applicant's right to respect for his family life due to the failure by the Romanian authorities in their obligation to take adequate and sufficient efforts to ensure respect for the applicant's right of access to and residence with his son, born in 1995, over a period of approximately six years (violation of Article 8).
After the applicant's divorce in 1997, the custody of the child was awarded to his ex-wife. On 16/12/1999 an access and residence order was made (final on 3/05/2000) authorising the applicant to spend one week with his son during the winter holidays and two weeks during his annual holidays. The applicant applied to the court bailiff service of the Bucharest Court of First Instance to obtain enforcement of this decision. However, his attempts remained ineffectual mainly due to the conduct of the mother, who failed to appear or came alone when summoned to attend with the child, or refused her former husband, accompanied by a court bailiff, entry to her flat.
Following a request by the French authorities under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the Romanian Ministry of Justice brought an action demanding that a detailed access programme be drawn up for the applicant. In 2005, the Bucharest Court of First Instance drew up a provisional access programme granting the applicant access on alternate weekends, from 4 p.m. on Friday to 5 p.m. on Sunday. Even so, the applicant was only able to meet his child for five months at the beginning of 2005 and after notice of the application had been given to the government. Moreover, the Romanian authorities only imposed a small fine on the ex-wife.
Individual measures: According to the European Court’s judgment the authorities did not pursue the programme of meetings between the applicant and his child after first five months of 2005, even though psychologists' reports attested to the effectiveness of such meetings.
• Information provided by the Romanian authorities: The applicant spent one week with his son during the winter holidays in 2006.
By a judgment of 22/06/2006 (final in May 2007) the Bucharest Court established a visiting schedule for the applicant. According to this schedule, the applicant may visit his son from Friday (6 p.m.) until Sunday (6 p.m.) during the first and the third week of each month. The stays were also foreseen for the first week of the Easter school holidays, in the period from 15/07 (6 p.m.) to 30/08 (6 p.m.) and during the first week of the Christmas holidays. This decision provides a possibility to send the applicant’s son during those periods to the applicant’s residence in France. By a letter of 4/06/2007 the Ministry of Justice requested a bailiff’s office to undertake all necessary measures to ensure the implementation of this decision.
On 27/03/2007 the Court of First Instance of Bucharest decided that the applicant’s son should undergo two months of psychological treatment. In May 2008 the Romanian authorities presented a report from the first psychological interview of the beginning of 2008, which is currently being examined by the Secretariat.
• Additional information is expected on the implementation of the applicant’s right of access to and residence with his son.
General measures: (No examination envisaged)
1) General legislative provisions regulating the exercise of the right of access
• Information is awaited on any appropriate general legislative provisions capable of ensuring the respect of the state's positive obligations under Article 8 with respect to access rights. Information would in particular be useful as regards the adequacy and effectiveness of the available means in this respect (e.g. enforcement measures, including sanctions, psychological and social assistance, etc.) and their capacity to ensure implementation of the legitimate rights of interested persons and respect for judicial decisions. Furthermore, information would be useful on any measures envisaged by the Romanian authorities in this respect.
2) Specific legislative provisions concerning the implementation of the 1980 Hague Convention with respect of the right of access
a) On 15/09/2004 Romania adopted Law No. 369/2004 on the implementation of the 1980 Convention on the Civil Aspects of International Child Abduction (entered into force on 29/12/2004). Specific provisions of this Law relate to the right of access:
- Enforcement measures
Law 369/2004 provides that the Romanian Central Authority (Ministry of Justice) shall attempt to bring about a friendly resolution concerning the exercise of the right of access. If this attempt fails, and at the explicit request of the person endowed with such right, the Central Authority shall take the necessary measures to ensure the compulsory enforcement of this right. The Law provides an initial, civil fine (approximately 125 to 625 euros) and, if the perpetrator does still not comply, the general rules governing the enforcement of court decisions are applicable. In addition, the court may order a defendant to pay a civil fine of approximately 12 to 25 euros for each day of delay.
- Preparation of the child for the contact with its parent
Law 369/2004 explicitly provides the possibility of psychological therapy for the child for a maximum of three months where access rights cannot be exercised due to the constant opposition of a child who manifests hostile feelings towards its parent (Article 18).
b) On 5/04/2005 the Ministry of Justice, on the basis of Article 24 of Law 369/2004, adopted Order No. 509/C to approve the Regulation on the modalities of exercising the duties of the Ministry of Justice as a Central Authority designated through Law No. 100/1992 on Romania's accession to the 1980 Hague Convention.
• Bilateral contacts are under way to assess the statistical data and examples of the application of Law 369/2004 by domestic courts, submitted by the Romanian authorities in June 2008.
3) Publication and dissemination of the European Court's judgment to relevant authorities:
• Information is awaited in this respect.
The Deputies decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of information to be provided on individual and general measures.
- 2 cases against the Russian Federation
42086/05 Liu and Liu, judgment of 06/12/2007, final on 02/06/2008
The case concerns a deportation order (not executed to this date) issued in 2005 against the first applicant, a Chinese national.
The first applicant has been married since 1994 to a Russian national (the second applicant) and had a daughter and a son with her, both Russian nationals. He lived legally in Russia from 1994-6 and 2001 to August 2003 on the basis of renewable work permits. His applications for a residence permit were repeatedly refused on the account that he presented a risk for national security. The local police department therefore initiated then deportation and administrative removal proceedings against him. The administrative proceedings opened under the Administrative Offences Code (unlawful residence on Russian territory) were finally discontinued by the courts. At the same time, the deportation proceedings launched under the Entry Procedure Act and the Instruction of the Ministry of Internal Affairs resulted in an enforceable deportation order of the Federal Migration Service. The latter proceedings were conducted without judicial scrutiny.
The European Court noted, in this respect, that Russian law establishes two parallel procedures, for expulsion of foreign nationals whose residence in Russia has become unlawful. In one of these procedures deportation of a foreign national can be ordered by the executive without any form of independent review or adversarial proceedings, while the other procedure (administrative removal) provides for judicial scrutiny. Domestic law permits the executive to choose between those procedures at their discretion. The enjoyment of procedural safeguards by a foreign national is thus dependent on the executive's choice (§66 of the judgment). In these circumstances, the European Court found that the legal provisions, on the basis of which the first applicant’s deportation was ordered, did not provide for the adequate degree of protection against arbitrary interference and thus did not meet the Convention’s “quality of law” requirements. It accordingly concluded that in the event of the deportation order against the first applicant being enforced there would be a violation of Article 8.
Individual measures: Non-pecuniary damage sustained by the applicants was compensated by the European Court. However, it appears from the judgment that the deportation order is still valid and enforceable and that deportation is imminent (§ 51 of the judgment).
• Information provided by the Russian authorities at the 1035th meeting (September 2008): On 4/08/2008 the Federal Migration Service annulled its decision of 22/03/2005 on the undesirability of the first applicant’s presence on the territory of the Russian Federation and the deportation order of 12/11/2005 delivered against him.
On 2/12/2008 the first applicant lodged an application with the Central District Court of Khabarovsk seeking the reopening of proceedings on the basis of newly discovered circumstances. Following the European Court’s judgment, he is asking the court to declare unlawful the refusal to grant him a residence permit, to oblige the competent authorities to deliver him such a permit and to compensate the non-pecuniary damage sustained.
• Latest developments: On 22/12/2008 the judge examining the case wrote to the Head of the Directorate of the Federal Migration Service for Khabarovsk region inviting him to secure the first applicant’s presence on the territory of the Russian Federation so as to allow him to effectively exercise his rights until a final judicial decision is taken in his case. It would appear that the first applicant was present at the hearing which took place on 6/02/2009.
More details are awaited on the concrete measures taken by the Federal Migration Service following the judge’s request.
On 6/02/2009, the representative of the Directorate of the Federal Security Service for Khabarovsk region lodged a request that the case be transferred to the Khabarovsk Regional Court which, according to the Russian Code of Civil Procedure, is the only level of jurisdiction competent to examine classified information, in particular that related to state secrets. This request was granted by the Central District Court and the case was sent to the Regional Court.
• Information is awaited on the progress of the case before the Khabarovsk Regional Court.
The Russian authorities also indicated that the judgment and the Committee of Ministers’ decisions had been widely disseminated to all competent authorities, such as courts, prosecutors, the Ministry of the Interior and the Federal Migration Service, in particular to their regional departments in the Khabarovsk region.
General measures (No examination envisaged at the meeting): General issues regarding the legislative and regulatory framework governing deportation are examined in the Bolat case (1059th meeting, June 2009).
The Russian authorities indicated that the judgment of the European Court was disseminated to all territorial departments of the Federal Migration Service, by a circular letter of its Director, and to all courts.
By a letter from the Russian Government Agent, the judgment was also sent to the President of the Supreme Court, to the General Prosecutor's office, to the Constitutional Court and to the Representative of the President of the Russian Federation in the Dalnevostochniy federal district.
The judgment was translated into Russian and published in the Bulletin of European Court (No. 6, 2008).
The Deputies decided to resume consideration of this item in the context of the Bolat case to supervise individual and general measures.
35421/05 Mechenkov, judgment of 07/02/2008, final on 07/07/2008
The case concerns inhuman and degrading treatment of the applicant due to the authorities’ failure to provide him with the minimum level of medical supervision for timely diagnosis and treatment of his hepatitis C while in detention (violation of Article 3).
From 1996 the applicant had been regularly given hepatotoxic anti-tuberculosis treatment, known to cause liver damage. The minimum level of medical supervision for the applicant’s condition could therefore have included regular blood tests for hepatitis, even if such tests had not been mandatory. Yet, it took the authorities eleven months to perform a blood test to confirm the diagnosis mentioned in the applicant’s medical records.
No antiviral treatment was proposed to the applicant on the ground of the absence of active hepatitis. However, no details were given as to by whom and in what circumstances such decision had been taken. The European Court also noted that the applicant was subject to blood monitoring and dynamic therapeutic supervision. Again, no details were provided as to the measures undertaken in the framework of this supervision. Finally, there was nothing to suggest that the applicant had ever been examined by a hepatologist, which would have been at least reasonable considering his hepatotoxic treatment for tuberculosis.
The case also concerns a violation of the applicant’s right to individual petition on account of the penitentiary authorities’ censorship in 2006 of his correspondence with the European Court (violation of Article 34).
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage.
According to the information provided by the Russian authorities, the applicant is no longer detained. He finished serving his sentence and was released on 27/10/2008. It would appear that on 1 and 3/09/2008 the applicant lodged two applications with the Oktybrskiy District Court of Novosibirsk. In his first application, he alleged that officials of correctional facility IK-18 intentionally caused damage to his health. This application was transmitted by the district court to the prosecutor’s office of the Oktybrskiy district of Novosibirsk. In his second application, the applicant expressed his general dissatisfaction with the law-enforcement officials and with the staff of the correctional facility, without however giving other details. This application was returned to him by the district court which invited him to further specify his complaints.
• Information is awaited on the measures taken or envisaged by the authorities in relation to the applicant’s complaints.
General measures (No examination envisaged): The case presents similarities to the Popov case (26853/04) (1059th meeting, June 2009) in which the Committee is examining the current legal and regulatory framework governing medical assistance to persons serving sentences.
1) Violation of Article 3: The Russian authorities provided extensive information on the detainees’ access to medical care in the framework of the Popov case. This information is being assessed by the Secretariat.
2) Violation of Article 34: Article 91§2 of the Russian Code on Execution of Sentences of 1997 («Уголовно-исполнительный Кодекс РФ»), as amended on 8/12/2003, as well as Rule 53 of the Internal Regulations of Correctional Facilities adopted by Decree No. 205 of the Russian Ministry of Justice of 3/11/2005, provide that all detainees' incoming and outgoing correspondence is subject to censorship by the administration of the correctional facility. Correspondence with courts, prosecutors, penitentiary officials, the Ombudsman, the public monitoring board and the European Court is not subject to censorship.
However, in the present case, a violation of the applicant’s right to individual petition occurred notwithstanding the existence of these legal and regulatory provisions.
• Information is therefore awaited on additional measures taken or planned to secure the detainees’ right to individual petition (possibly through strengthening of officials’ responsibility for non-compliance with the provisions mentioned above).
3) Publication and dissemination
• Information is awaited on the publication of the European court’s judgment and its dissemination to all authorities concerned, in particular to the relevant departments of the Federal Service for execution of sentences and of the General Prosecutor’s Office. Given the importance of the right to individual petition for the proper functioning of the Convention system, such dissemination to the departments of the Federal Service for execution of sentences should be accompanied by a circular letter of the Head of the Service drawing the attention of its staff to their obligation under the Convention and to the sanctions in case of non-compliance. The same measure may be envisaged by the Prosecutor General while disseminating the judgment to prosecutors in charge of the supervision of compliance with law and regulations in penitentiary institutions.
The Deputies decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of information to be provided on individual and general measures.
- 1 case against Serbia
- Case of length of judicial proceedings
39177/05 V.A.M., judgment of 13/03/2007, final on 13/06/2007
The case concerns the excessive length of proceedings initiated in 1999 by the applicant, who is HIV positive, before the Fourth Municipal Court of Belgrade seeking dissolution of her marriage, sole custody of her daughter, born in 1995, and child maintenance (violation of Article 6§1).
The European Court recalled that exceptional diligence was required in dealing with cases in which the plaintiff was HIV positive, as well in all matters where the proceedings concern child custody disputes (§§101, 105 and 106 of judgment).
The case also concerns the violation of the applicant's right to respect of her family life due to the non execution since 1999 of the domestic court's interim order providing the applicant's access to her daughter, as well as the excessive length of the civil proceedings (double violation of Article 8). The child has not seen the applicant since August 1998 and the interim access order has not been enforced due to the unco-operative attitude of the child's father and impossibility of serving court documents on him due to his repeated changes of addresses, including abroad in Montenegro.
Finally, the case concerns the lack of an effective remedy under domestic law concerning the excessive length of proceedings (violation of Article 13).
Individual measures: The European Court recalled the obligation of the respondent state to enforce, “by appropriate means”, the interim access order of 23/07/1999 and to “bring to a conclusion, with particular diligence, the ongoing civil proceedings” (§166 of judgment).
• Information provided by the Serbian authorities and the applicant:
A. Child custody and maintenance proceedings: The proceedings concerning the child custody and maintenance were closed on 14/12/2007 and the judgment was confirmed on appeal on 12/03/2008. It has thus become final and repealed the 1999 interim order. The judgment left custody to the father and confirmed the applicant's visitation rights.
B. Enforcement proceedings: On 02/06/2008 the court ordered enforcement of the judgment of 14/12/2007 and its decision was served on the child's father on 14/06/2008. However, the child's father has persisted in obstructing the applicant's access to her child as well as the payment of costs awarded to the applicant. So far no contact between the applicant and her child has been established. The court fined the father twice for failure to produce the child for the purpose of enforcing the interim access order and twice for non-compliance with the final judgment. On 20/08/2008, the court ordered the attachment and the public auction of the chattels belonging to the child's father in order to compel him to pay the fines imposed. It also awarded costs and expenses. According to the court, the father's non-compliance cannot be and is not in the best interest of the child and amounts to a threat to the psychological, physical and emotional development of the child. All set-off claims against the applicant and proposals raised by the child's father for rescheduling the enforcement to a later date were expeditiously dismissed. The decision of 20/08/2008 was appealed. However, on 28/08/2008 the bailiff listed certain chattels in the apartment of the child's father for attachment. Finally, on 02/12/2008, the court bailiff attached certain items belonging to the child’s father who eventually paid the costs and expenses awarded as well as the fines.
C. Criminal proceedings: The Social Care Centre was ordered by the ministry in charge to take a number of legal steps. Pursuant to this order, the Social Care Centre filed a criminal complaint against the child's father on 21/07/2008 alleging abduction of the child and joined the applicant in her motion for enforcement of the judgment. On 08/10/2008 the public prosecutor filed a criminal indictment against the child's father before the court alleging abduction of a minor. The hearing scheduled for 21/01/2009 was adjourned to 25/02/2009 since the child’s father failed to appear before the court. The court ordered the police to bring him to the next hearing with use of force if necessary.
D. Proceedings for deprivation of parental rights initiated by the applicant: The Social Care Centre also submitted a report to the court in the proceedings for deprivation of parental rights, putting forward arguments for such deprivation and underlying that “there have been elements of emotional abuse” of the child by the father . At the hearing held on 15/09/2008, representatives of the Social Care Centre failed to attend and to respond to the court’s requests in writing. The judge informed the higher instances and ordered an expert report through the Belgrade School of Medicine concerning both parents and child in the context of the requested change of the custody decision. Upon the judge's request, the Social Care Centre on 14/10/2008 appointed a guardian to represent the interests of the minor child in these proceedings. At the hearing held on 15/10/2008, the child's father was heard.
Since the expert report had not been completed, the judge imposed fines on the Belgrade School of Medicine for non-compliance should it be verified that the court document describing the expertise task was duly served on them. Since then three hearings have been adjourned because the Belgrade School of Medicine failed to produce the required expert report. The next hearing is scheduled for 17/03/2009.
E. Preparatory work: On 25/11/2008, in the context of the enforcement proceedings, the Belgrade Fourth Municipal Court ordered the head teacher of the child’s school to organise preparatory work with the child in co-operation with the Social Care Centre. The court also ordered the Social Care Centre to hold a meeting with the school to draw up a plan concerning the methods and the timetable of such preparatory work. The Social Care Centre was under an obligation to inform the court of the steps taken by 25/12/2008. The Social Care Centre held this meeting on 17/12/2008. The Social Care Centre briefed the school psychologist and provided relevant material in writing. It was agreed that the school psychologist should plan working with the child at least once a week and should regularly inform the Social Care Centre on further developments. Due to the school winter holidays, no preparatory work with child has taken place so far.
F. Planning further actions: The Government Agent organised a meeting for all authorities involved in the present case on 07/10/2008, attended as well by the Deputy Minister of Justice. The attendees agreed upon the future measures to be taken by each of them in the next two months.
• Assessment: The Secretariat notes at the outset that the underlying child custody and maintenance proceedings have been brought to a conclusion as it was indicated by the European Court. Furthermore, it is noted that the national authorities are under the obligation to take all necessary steps to facilitate the execution of access orders as can reasonably be demanded in the special circumstances of each case. It appears that the Serbian authorities did take many different steps available under domestic law and demonstrated commitment in their efforts to make the child's father comply with the court's decisions. However, the measures taken so far have not made it possible for the applicant to have access to her child. In these circumstances, the Serbian authorities are expected to take further steps to accelerate the enforcement proceedings, including the preparatory work with the child, as well as the proceedings concerning the deprivation of parental rights initiated by the applicant.
• Information is therefore awaited on further measures taken to ensure that the applicant may exercise her access rights without further delay and on the outcome of the efforts made by the Serbian authorities in this context. Information is also awaited with regard to the acceleration of the enforcement proceedings, including the preparatory work with the child, the ongoing criminal proceedings and the proceedings concerning the deprivation of parental rights initiated by the applicant.
General measures (No examination envisaged at this meeting): The Serbian authorities provided the following information with respect to the general measures taken:
1) Excessive length of civil proceedings:
A. Measures taken so far
I. Legislative measures: The Serbian Constitution provides the right to a fair trial within reasonable time (Article 32). Similarly, the 2005 Civil Procedure Act prescribes that a court should decide on claims and motions of the parties within reasonable time (Article 10).
The Serbian authorities provided excerpts from a number of domestic case-files concerning family-law issues, including custody proceedings, corroborating the implementation in practice of this legislation as well as the 2005 Civil Procedure Act (§61 and 62 of the judgment) and the 2005 Family Law (§57 and 58 of the judgment) to avoid the excessive length of proceedings. The new measures introduced should help to tackle the problem of excessive length of proceedings. In particular, if normal service of documents is unsuccessful, documents should be posted on the court's own notice board and the service will be deemed duly accomplished. All family-related disputes involving children must be resolved urgently. First-instance courts should conclude proceedings after no more than two hearings, and second-instance courts must decide on appeals within 30 days. Maintenance suits are particularly urgent: a first hearing must be scheduled within 8 days of the filing of the claim and second-instance courts must decide on appeal within 15 days.
The Serbian authorities provided a comprehensive and detailed report (04/06/2008) on various measures taken or envisaged to accelerate civil proceedings, including further legislation adopted to this effect.
Mediation was introduced in 2005 by the Mediation Act as an alternative means of dispute resolution to further alleviate the workload of the courts. In 2006 a special law on training and education of members of the judiciary was adopted.
II. National Strategy of Judiciary Reform and Action Plan: The 2006 National Strategy of Judiciary Reform and Action Plan for Implementation of the Strategy were adopted. They are based on four principles: independence, transparency, responsibility and efficiency. The Strategy set a 6-year period for its implementation (2006-2012).
III. New courts: In accordance with the new court organisation, the Ministry of Justice secured sufficient funds for operation of the Appeals Courts and Administrative Court as from 01/01/2009. In particular, the new building where the supreme judiciary institutions will be housed should be completed in 2008 in Belgrade and should include 29 000 m² of space, with 500 offices and 40 courtrooms. Buildings are also secured for Appeals Courts in Novi Sad, Niš and Kragujevac.
B. Measures pending
I. Legislative measures: Amendments to the Civil Procedure Act are currently being drafted with a view to increasing the efficiency of judicial procedures and removing problems faced in practice when applying this law. The short-term priority includes the adoption of a set of laws concerning the judiciary, including draft laws on attorneys, public notaries, bar examinations, the National Judiciary Training Institute and free legal aid.
II. Backlogs: secondary legislation defines parameters for the number of cases to be resolved by a judge during a month. It is planned to introduce a weighting system in 2009 to measure better the efficiency of individual judges. The draft laws concerning the judiciary envisage that retired judges are hired in order to reduce the number of backlog cases. The number of pending cases has reached 700 823 in all jurisdictions. 142 554 of these have been pending over two years.
III. Training activities: The Judiciary Centre will be transformed into the National Judiciary Training Centre. It is envisaged that continuous training would be a requirement for appointments of judges. Special attention is paid to training on the Convention. Since 2006 training on case-management has also been provided.
IV. Efficiency of court organisation: An analysis on workload of courts and public prosecutors is currently under preparation. It will enable drafting of proposals for rationalisation of the court and prosecution network.
V. IT infrastructure: The Ministry of Justice is investing special efforts in IT technologies. All commercial courts will be automated in October 2008, while a complete IT communication judiciary network will be completed by 2012.
VI. Court Budget: The 2008 budget has allocated approximately 282 million euros for judiciary (approximately 253 million euros for courts). According to the judiciary-related draft laws, the High Judiciary Council should become direct administrator in the budget appropriations so far as salaries and operating costs of the courts are concerned.
C. Outstanding issues
Service of court documents: The Serbian authorities acknowledged (15/10/2008), however, that certain problems remain with regard to the widespread non-compliance with regulations concerning residence registration. Such practice is resulting in frequent inability to service court documents on the parties concerned.
• Assessment: It appears that the new legislative framework is capable of preventing length of proceedings. The detailed report provided by the Serbian authorities shows a positive trend and significant efforts to shorten the length of judiciary proceedings, including civil proceedings. The Strategy and Action Plan set forth a clear roadmap for increasing of efficiency in the judiciary sector. However, certain problems still persist, such as those related to service of court documents.
• Information is awaited on further developments in the implementation of the National Strategy of Judiciary Reform so far as the curbing of length of judiciary proceedings is concerned and on further progress in the adoption of a package of draft laws concerning the judiciary and the draft amendments to the Civil Procedure Act, including their copies. Information would be helpful on the developments regarding the all ongoing measures.
Information is also awaited on measures taken or envisaged to improve efficient service of documents in the context of the problems related to widespread non-compliance with residence regulations.
2) Violation of right to respect for family life (non-enforcement of a court decision): According to the 2004 Enforcement Procedure Act, courts must act urgently in all enforcement proceedings and decide on any enforcement application within 3 days. Any action by the court contrary to this provision shall be considered as “unprofessional conduct of a judge” within the meaning of the Judges' Act.
The 2004 Enforcement Procedure Act provides an initial period of 3 days for voluntary compliance with a child custody order. Beyond that, however, fines are imposed and, ultimately, if necessary, the child may be taken forcibly in co-operation with the social care authorities. Where, exceptionally, the life, health or proper development of a child is threatened, the child shall be removed and transferred to another person without laying down any period for voluntary enforcement or fining the party in default.
The Serbian authorities delivered to the Secretariat on 04/12/2007 excerpts from a number of domestic case-files evidencing application of the 2004 Enforcement Procedure Act and Criminal Code in child custody matters.
• Seminar: In co-operation with the Department for the Execution of Judgments of the European Court, the Serbian authorities organised a seminar in Belgrade on 25-26/09/2008 devoted to the application of Article 8 of the Convention in the context of the judgments of the European Court rendered in respect of Serbia. The seminar was attended by high-profile officials and members of various Serbian authorities concerned. At the end of the seminar, the participants agreed on a number of conclusions identifying the problems with respect to enforcement of domestic court decisions in family matters as well as setting out a number of proposals for further improvement. These conclusions are publicly available at the website of the Serbian Government Agent in Serbian (www.zastupnik.sr.gov.yu).
• Follow-up: The Serbian authorities acknowledged in their submission of 15/10/2008 that certain problems have been detected in the application of the Family Law and Enforcement Procedure Act in the enforcement of court decisions concerning family matters as well as concerning lack of co-ordination, communication and supervision between various national bodies. In this regard, the Ministry of Labour and Social Policy drafted internal instructions concerning the powers of social care centres in accordance with the Family Act. These instructions will be distributed to all courts. It is also expected that the first drafting of amendments to the Enforcement Procedure Act would be finalised by the end of October 2008. The authorities will take into consideration the discussions made during the seminar for further measures to be taken. Furthermore, in their submission of 15/01/2009, the Serbian authorities indicated that in November 2008 a task group was established to develop the Special Protocol for Protection of Children against abuse and neglect which should be completed by April 2009.
• Information is awaited on further developments in the implementation of the measures announced, in particular with regard to the measures outlined in the conclusions.
3) Lack of an effective remedy: The Constitutional Court Act has been adopted in 2007. It provides the possibility to lodge a complaint before the Constitutional Court in case of breach of the right to a trial within reasonable time, even if the other legal remedies have not been exhausted. The law has not determined a term within which a decision must be taken upon constitutional complaints. However, it has limited the time-limit within which state and other authorities, legal entities and natural persons are obliged to respond, specifying that they all must act within the term set by the court, which cannot be less than 15 days. It is noted that the Constitutional Court adopted its Rules of Operation in February 2008 (Official Gazette, No. 24/08). Additional bylaws of the Constitutional Court adopted in May 2008 completed the legislative framework required for its operation.
The Constitutional Court Act further provides that if an individual complaint before the Constitutional Court is upheld, the complainant may submit a claim for damages to the special Damages Commission. The Damages Commission must make a decision on the claim within 30 days failing which the applicant will be entitled to file a claim for damages before a court of law. In March 2008, members of the Damages Commission were appointed by the Minister of Justice and its Rules of Operation adopted (Official Gazette, No. 27/08). No claim has been filed with the Damages Commission so far.
The Serbian authorities further submitted that in 2008 a total of 1 567 constitutional complaints were filed. The Constitutional Court has dismissed around 323 constitutional complaints for procedural reasons, while it decided on the merits under 32 constitutional complaints. The Constitutional Court drafted the Guide on How to Prepare a Constitutional Complaint and a form to be filed by the applicants. Both are available on the website of the Constitutional Court (www.ustavni.sud.sr.gov.yu).
• Assessment: Notwithstanding the fact that relevant legislation was introduced, no evidence has been provided concerning the availability in practice of an effective remedy in compliance with the Convention's standards.
• Information is thus awaited on the implementation of the statutory provisions concerning complaints before Constitutional Court as well as their effectiveness in practice, including further information on the first experience of the Constitutional Court and Damages Commission in this regard.
In this respect, the authorities' attention is drawn to the Committee of Ministers' Recommendation Rec(2004)6 to member states on the improvement of domestic remedies and to measures adopted in this field by other countries (see e.g. Kudła against Poland, Interim Resolution CM/ResDH(2007)28; Jóri against the Slovak Republic, Final Resolution ResDH(2005)67; Horvat against Croatia, Final Resolution ResDH(2005)60 and Lukenda against Slovenia (Section 4.2).
4) Dissemination: The State Agent promptly issued a press release on the European Court's judgment, which was widely reported in the Serbian press. He also forwarded the translation of the Court's judgment to the Supreme Court of Serbia with a request for further distribution to all domestic courts. During his visits to certain courts the State Agent delivered copies of the translated judgment to them. Finally, the judgment was distributed and discussed at a seminar organised on 14-15/06/2007 by the Department for Human and Minority Rights of the government and the State Agent in co-operation with the Council of Europe, attended by members of judiciary and state authorities.
5) Publication: The European Court's judgment was immediately translated and published in the Official Gazette of the Republic of Serbia No. 53 of 13/06/2007, as well as on the website of the State Agent (www.zastupnik.sr.gov.yu). A commentary on the judgment by the State Agent was published in the specialised legal magazine Paragraf, including its Internet edition, and in the journal Selected Case-Law (Izbor sudske prakse) No. 5/2007.
The Deputies decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of further information to be provided on individual and general measures.
- 2 cases against Switzerland
58757/00 Jäggi, judgment of 13/07/2006, final on 13/10/2006
The case concerns a violation of the right of the applicant, a Swiss national born in 1939, to respect for his private life due to the refusal of Swiss courts to authorise him to obtain DNA evidence from the remains of a person believed to be his father to establish certainty in discovering his parentage (violation of Article 8).
A paternity action against the alleged father of the applicant, A.H., brought on behalf of the applicant shortly before his birth by a state-appointed adviser was dismissed at first instance in 1948. The applicant, throughout his life tried to obtain reliable information as to whether A.H. was his father. During his lifetime A.H. always refused to submit to tests to establish his paternity. In 1997, the applicant, paying the fees, renewed the lease for A.H.'s tomb until 2016. In 1999, the applicant unsuccessfully sought the revision of the 1948 judgment, requesting a DNA test on the remains of A.H.
The European Court stated that an individual's interest in discovering his parentage does not disappear with age and that the protection of legal certainty alone is not a sufficient ground to deprive the applicant of his right to discover his parentage. Furthermore, in opposing the DNA test, A.H.'s family did not invoke any religious or philosophical reasons against this relatively unintrusive measure nor would such a testing constitute an interference with the right to private life of the deceased within the meaning of Article 8. Moreover, the right to rest in peace enjoyed limited protection as without the extension of the lease by the applicant, the body of A.H. would have been exhumed already in 1997.
Individual measures: In the proceedings before the European Court the applicant requested that the Court hold that he is entitled to revision procedures before the competent domestic authorities. The Court noted that the respondent state is free, under the supervision of the Committee of Ministers, to choose the means of fulfilling its obligation under Article 46 of the Convention insofar as they are compatible with the conclusions of the judgment.
In January 2007 the applicant had lodged an application for revision with the Federal Court, seeking first the annulment of the 1999 domestic decisions by which he was refused a DNA test on the remains of his alleged father and secondly the authorisation to proceed with the same test at his own expense. In its judgment of 30/07/2007, the Federal Court admitted the application and annulled its own previous decision of 1999. However, it did not decide on the applicant's initial appeal to revise the 1948 decision and the authorisation to carry out a DNA test on the remains of A.H. It observed that the request for a DNA test was based on Article 205 of the cantonal law on civil proceedings which implied that a case was still pending at cantonal level. This was no longer the case since on 25/5/2000 the applicant withdrew his action for review of the 1948 judgment. The Federal Court also excluded the possibility for the applicant to invoke directly the European Court judgment to obtain from the Federal Court itself the authorisation to proceed with the DNA test, because this fell within the competence of a first-instance court.
Finally, although it recognised the applicant 's right to have satisfaction, the Federal Court considered it was not bound to indicate before which authority and by which kind of procedure the applicant was to obtain it, due to recent developments in case-law and legislation. Instead, it provided the applicant with several sources, mainly doctrinal, on the subject.
On 12/12/2007, the applicant asked the Geneva first-instance court for authorisation to proceed with the DNA test. In a judgment delivered on 12/01/2009, this court authorised the applicant to order such a DNA test on the body of his late, alleged father, with a view to proving whether or not he was his ascendant. This test is to be carried out by a medical institute named in the judgment, and the institute must register its findings and conclusions in a report.
• Further information appears necessary as to whether the judgment has become final, or if it has been appealed.
General measures: Measures have been taken to ensure that, in view of the direct effect of the Convention in Switzerland, the requirements of Article 8 as interpreted by the European Court's case-law will be duly taken into account, thus preventing new, similar violations.
So, in July 2006, the judgment of the European Court was sent out to the authorities directly concerned, and brought to the attention of the Cantons via a circular in November 2006. Furthermore, the judgment was published in Verwaltungspraxis der Bundesbehörden (Digest of Confederal Administrative Case-law), VPB 70.116, available via http://www.vpb.admin.ch/deutsch/doc/70/70.116.html and it has been mentioned in the yearly report of the Federal Council on the activities of Switzerland in the Council of Europe in 2006. The judgment has also been commented (inter alia: Regina E. Aebi-Müller, EGMR-Entscheid Jäggi c. Suisse: Ein Meilenstein zum Recht auf Kenntnis der eigenen Abstammung-, Jusletter 02/10/2006, Rz. 8).
In this context, reference is also made to a judgment delivered by the Swiss Federal Court on 28/02/2008, concerning the protection of identity and the right of children of age to know their ancestry (reference ATF 134 III 241). This judgmen makes broad reference to the Jäggi judgment of the European Court and is presented as a reference judgment (Leiturteil) in the Collection of the Federal Court’s judgments.
The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4(morning) December 2009) (DH) in the light of information to be provided on individual measures.
42034/04 Emre, judgment of 22/05/2008, final on 22/08/2008
This case concerns the violation of the applicant's right to respect of his private and family life, due to his deportation from Switzerland (violation of Article 8).
The applicant, a Turkish national, arrived with his family in Switzerland before the age of six, in 1986. Following a number of offences, in 2003, the department for foreigners of the Canton of Neuchâtel decided on his administrative deportation for an undetermined duration; this decision became final on 21/05/2004.
The European Court considered that, in doing so, the Swiss authorities had not found a proper balance between the applicant's and his family's interest on the one hand and their own interest to control immigration on the other hand. Although the measure at issue was provided by law and pursued a legitimate aim, it was not necessary in a democratic society. In thus concluding, the Court took particularly into account: the fact that some of the offences committed by the applicant came under the heading of juvenile delinquency; the fact that the applicant's health problems might make his return to his country of origin harder, as he does not have much of a social network; the degree of seriousness of the offences of which the applicant had been convicted; his weak ties with his country of origin; the final nature of the deportation order.
Individual measures: After the applicant's first deportation in 2004 and his illegal re-entry into Switzerland, he was once again deported to Turkey on 01/11/2005. According to the last information available to the European Court (§33) an appeal at least to suspend the deportation was pending before the Administrative Tribunal of the Neuchâtel Canton. Following the European Court’s judgment, the attention of the authorities concerned (who apply the Convention directly) has been drawn to the conclusions of the Court. In particular, the judgment was sent to the authorities of Neuchâtel Canton on 22/05/2008, the day on which the judgment was delivered (see also the other measures of publication and dissemination presented below). These authorities will issue the applicant with a residence permit.
The European court rejected the applicant's allegations concerning loss of earnings owing to his deportation; it however awarded just satisfaction in respect of the non-pecuniary damages sustained by the applicant.
• It would appear useful to confirm that the applicant has been issued with a residence permit, and to provide further details on the kind of permit concerned (as compared with the permit issued to the applicant before the violation).
General measures: It is the disproportionate character of the applicant's deportation, in view of the circumstances of the case, which the European Court criticised. The Swiss authorities confirm that this is an isolated case, corresponding to a difference of assessment of what was at issue between the national authorities and the European Court. So the texts themselves do not seem to have been brought into question; it may nevertheless be underlined that they have evolved since the facts of the case (with the entry into force of the revised Criminal Code on 01/01/2007, the former article concerning deportation as a criminal sanction was abrogated; the present legal status of deportation is regulated in Chapter 10 of the Federal Law on Aliens of 16/12/2005: http://www.admin.ch/ch/f/rs/1/142.20.fr.pdf).
So that the competent authorities may avoid new, similar violations by directly applying this case-law of the European Court, the judgment has been widely published and disseminated. It was sent out to the Neuchâtel Canton authorities on 22/05/2008 (see above). It is presented in the second quarterly report of the Ministry of Justice (Office fédéral de la Justice; http://www.bj.admin.ch/etc/medialib/data/staat_buerger/menschenrechte/eurokonvention.Par.0005.File.tmp/ber-egmr-2008q2-f.pdf).
These quarterly reports are sent out to all the relevant Federal authorities (Tribunal fédéral, Tribunal fédéral administratif, Tribunal fédéral pénal, Secretariat of the Parliament) as well as the relevant justice authorities in the Cantons. A summary of the judgment is also presented in the Annual Report of the Federal Council on the activities of Switzerland in the Council of Europe in 2008. Finally, the Tribunal Fédéral itself published the judgment: http://www.bger.ch/fr/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-leitentscheide1954.htm (more generally, the Tribunal fédéral now publishes, at this Internet address, all the judgments of the European Court against Switzerland).
• Assessment: No other measure appears necessary.
1. decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of information to be provided on individual measures, namely the issue of a residence permit for the applicant;
2. noted that the other measures have already been adopted.
- 233 cases against Turkey
19807/92 Erdoğan and others, judgment of 25/04/2006, final on 13/09/20066
52955/99 Huylu, judgment of 16/11/2006, final on 23/05/20077
60856/00 Eren Mürsel, judgment of 07/02/2006, final on 03/07/20068
26308/95 Institut de Prêtres français and others, judgment of 14/12/00 – Friendly settlement - Interim Resolution ResDH(2003)1739
42104/02 Kahraman Kemal and Kahraman Ali, judgment of 26/04/2007, final on 26/07/2007
32432/96 Tunç Talat, judgment of 27/03/2007, final on 27/06/2007
- Cases of length of criminal proceedings in particular before martial law courts11
15259/02 Ertürk Hasan, judgment of 12/04/2005, final on 12/07/2005
36150/02 Kaya Mehmet, judgment of 06/12/2005, final on 06/03/2006
- Case of length of criminal proceedings before state security courts12
31540/02 Atıcı No. 2, judgment of 12/04/2007, final on 12/07/2007
Cases raising the issue of restitutio in integrum for the applicants:
reopening of the domestic proceedings not allowed by Turkish law:
- 206 cases concerning the independence and impartiality of state security courts13
(See Appendix for the list of cases in the Gençel group)
39465/98 Parsıl, judgment of 26/04/2005, final on 26/07/200514
- Cases concerning ill-treatment suffered by the applicants and the lack of independence and impartiality of state security courts15
52941/99 Gültekin and others, judgment of 31/05/2005, final on 31/08/2005, rectified on 06/12/2005
27526/95 Günaydın Vedat and Şahin, judgment of 13/10/2005, final on 15/02/2006
48063/99 Aslan Orhan, judgment of 20/10/2005, final on 20/01/2006
42579/98 Demir Murat, judgment of 02/03/2006, final on 02/06/2006
43925/98 Karakaş and Yeşilırmak Yılmaz, judgment of 28/06/2005, final on 28/09/2005
39813/98 Önder Soner, judgment of 12/07/2005, final on 12/10/2005
40986/98 Soner and others, judgment of 27/04/2006, final on 27/07/2006
42594/98 Uçkan, judgment of 22/06/2006, final on 22/09/2006
- Cases concerning the unfairness of the criminal proceedings against the applicants16
35811/97 Kolu Mustafa, judgment of 02/08/2005, final on 02/11/2005
74500/01 Çelik and others, judgment of 26/06/2007, final on 26/09/2007
71803/01 Kapan and others, judgment of 26/06/2007, final on 26/09/2007
36487/02 Menteş Güler, judgment of 06/02/2007, final on 06/05/2007
46213/99 Örs and others, judgment of 20/06/2006, final on 20/09/2006
46286/99 Özen Hacı, judgment of 12/04/2007, final on 12/07/2007
38419/02 Yıldız Sacettin, judgment of 05/06/2007, final on 05/09/2007
32984/96 Alfatli and others (applicant Mahmut Memduh Uyan), judgment of 30/10/03, final on 24/03/0417
11449/02 Tavlı, judgment of 09/11/2006, final on 09/02/2007, rectified on 25/01/200718
1 Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 1043rd meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.
2 Inclusion of cases in this Section does not exclude the possibility that general measures may be examined at subsequent meetings.
3 The Deputies decided to postpone consideration of these cases to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
4 The Deputies decided to postpone consideration of this case to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
5 The Deputies decided to postpone consideration of this case to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
6 The Deputies decided to postpone this item to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
7 The Deputies decided to postpone this item to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
8 The Deputies decided to postpone this item to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
9 The Deputies decided to postpone this item to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
10 The Deputies decided to postpone these items to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
11 The Deputies decided to postpone these items to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
12 The Deputies decided to postpone this item to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
13 The Deputies decided to postpone these items to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
14 The Deputies decided to postpone this item to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
15 The Deputies decided to postpone these items to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
16 The Deputies decided to postpone these items to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
17 The Deputies decided to postpone this item to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).
18 The Deputies decided to postpone this item to the 1059th meeting (2-4 and 5(morning) June 2009) (DH).