Ministers’ Deputies
Agenda

CM/Del/OJ/DH(2009)1059 Section 2.1 PUBLIC 19 June 2009

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1059th meeting (DH), 2-4 and 5 (morning) June 2009

- Annotated Agenda1
- Decisions

Section 2.1

Public information version

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SECTION 2 - NEW CASES

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

Action

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

Payment of just satisfaction

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

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

Aliyev and others against Azerbaijan (28736/05)
Kalkanov against Bulgaria (19612/02)
Panovits against Cyprus (4268/04)
Forminster Enterprises Limited against the Czech Republic (38238/04) (reserved)
Družstevní Záložna Pria and others against the Czech Republic (72034/01) (reserved)
Husák against the Czech Republic (19970/04)
Fakiridou and Schina against Greece (6789/06)
Paraponiaris against Greece (*42132/06) (reserved)
Tv Vest As and Rogaland Pensjonistparti against Norway (21132/05)
Pijevschi against Portugal (6830/05)
Hagiescu and others against Romania (7901/02) (reserved)
Khuzhin and others against the Russian Federation (13470/02)
Oral No. 2 against Turkey (18384/04)
Menemen Minibüsçüler Odası against Turkey (44088/04)
Soldatenko against Ukraine (2440/07)
Novik against Ukraine (48068/06)

General or individual measures3

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

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

The Deputies decided in particular to resume consideration of these items at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary.

- 1 case against Andorra

38196/05 Vidal Escoll and Guillán González, judgment of 29/07/2008, final on 26/01/2009
This case concerns the fact that it was impossible for the applicants to obtain enforcement of a judgment given in their favour by the High Court of Justice in May 2003.
In 1999 the applicants, relying on the unlawfulness of the building permits for two blocks of flats being built opposite and beside where they lived, brought an action to have the permits annulled before the administrative section of the court of batlles. In a judgment of 28/05/2003, the High Court of Justice ruled in favour of the applicants and ordered the demolition of the parts of the two buildings exceeding the regulation height.
However, in June 2004, at the request of the local authority of Escaldes-Engordany, Parliament decided to expropriate part of the property of each applicant on town-planning grounds. The Constitutional Court, seised of an empara appeal by the applicants, held in a judgment of April 2005 that these expropriations would result in transforming the applicants’ property rights into an entitlement to compensation and would thus render their application for enforcement of the 28/05/2003 judgment pointless.
Noting that the local authority had taken no measure with a view to enforcing the 2003 judgment, the European Court found that the expropriation decision, taken after the judgment at issue establishing the rightfulness of the applicants’ position, could not be considered a sufficiently exceptional circumstance to justify the failure to enforce a final judgment (violation of Article 6§1).
Individual measures: The European Court awarded each of the applicants' just satisfaction in respect of all heads of grievance.
Information is awaited on measures to redress the violation found, including the enforcement of the 20/05/2003 judgment of the High Court of Justice.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations and on the dissemination of the European Court’s judgment to the judicial bodies concerned.

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 and general measures.

- 1 case against Austria

4490/06 Richter, judgment of 18/12/2008, final on 18/03/2009
The case concerns the excessive length of certain proceedings concerning civil rights and obligations before administrative courts (violation of Article 6§1).
Proceedings began on 7/02/2000 when the mayor dismissed the applicant’s objection against the amendment of the building permit granted to his neighbour. They ended on 25/07/2005 when the Administrative Court’s decision was served on the applicant’s counsel (five years and five and a half months for four levels of jurisdiction).
The European Court noted in particular two lengthy periods of inactivity before the Administrative Court, namely between 09/2001 and 03/2003, and between 07/2004 and 06/2005, amounting to a total delay of two years and five months.
The case also concerns the lack of an oral hearing before the Administrative Court (violation of Article 6§1).
Individual measures: The proceedings are over. The European Court awarded just satisfaction in respect of non-pecuniary damage.
Assessment: no further individual measure appears necessary.
General measures:
1) Excessive length: The case presents similarities to those of the Ortner group (2884/04, 1065th meeting (September 2009).

2) Lack of an oral hearing: The case presents similarities with that of Linsbod (Final Resolution CM/ResDH(98)59, adopted on 22/04/1998), closed following the adoption of legislative changes, and with the Alge group of cases (Final Resolution CM/ResDH(2007)110, adopted on 31/10/2007), according to which the payment of just satisfaction out of the Administrative Court’s budget would suffice to prevent new, similar violations. As the violation in the present case occurred after the adoption of these measures, publication and dissemination of the European Court’s judgment, in particular to the Administrative Court, seem to be necessary.
Information is awaited in this respect.

The Deputies decided to resume consideration of this item at their next examination of the Ortner group of cases.

- 2 cases against Azerbaijan

35877/04 Mahmudov and Agazade, judgment of 18/12/2008, final on 18/03/2009
The case concerns a breach of the applicants’ right to freedom of expression on account of their conviction and sentencing to 5 months’ imprisonment for defamation and insult by a judgment of the Yasamal District Court of 20/05/2003, upheld on 16/07/2003 by the Court of Appeal and on 2/03/2004 by the Supreme Court (violation of Article 10).
The first applicant was the acting chief editor of the Müxalifət newspaper. The second applicant was a journalist working for the same newspaper.
The European Court found that, although the interference with the applicants' right to freedom of expression may have been justified, the criminal sanction imposed was disproportionate to the legitimate aim pursued by the applicants' conviction for insult and defamation. By sentencing the applicants to imprisonment, the domestic courts contravened the principle that the press must be able to perform the role of a public watchdog in a democratic society.
Individual measures: The applicants were sentenced to 5 months’ imprisonment but were exempted from serving their sentences in application of the Resolution of the Parliament of Azerbaijan on Amnesty in Connection with the Anniversary of the Victory over Fascism in World War II. The Court awarded the applicants just satisfaction in respect of non-pecuniary damage. Lastly, it appears from the Court’s judgment (cf. §20) that a record of the sentence is not included in their criminal records.
Assessment: No further measure seems necessary.
General measures: The Court reiterated that, although sentencing is in principle a matter for the national courts, the imposition of a prison sentence for a press offence will be compatible with journalists' freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, particularly where other fundamental rights have been seriously impaired, as, for example, in cases of hate speech or incitement to violence
Articles 147.1 (defamation) and 148 (insult) of the Criminal Code provide up to six months’ imprisonment.
Information is awaited on the translation of the European Court’s judgment and its publication and dissemination to tribunals dealing with cases regarding freedom of expression as well as on the modifications of the Criminal Code of Procedure which are necessary following this judgment.

The Deputies decided to resume consideration of this item at the latest their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

28736/05 Aliyev and others, judgment of 18/12/2008, final on 18/03/2009
The case concerns a violation of the applicants’ right of freedom of association (violation of Article 11) due to the failure of the Ministry of Justice to reply within the statutory time-limits on the applicants' request for registration of their association, “the Azerbaïjani Lawyers Forum”.
This case is similar to the cases of the Ramazanova group. It differs from them in that several months after the applicants had made their request for state registration, a new law came into force. The domestic courts, when deciding on the appeal lodged by the applicants, applied the new law and dismissed their appeal on the ground that the Ministry of Justice had send a reply to the applicants within the time limit provided by the new law. The Court noted that neither the former domestic law nor this new law provided any retrospective effect. The Court stated that, by concluding as they did, the domestic courts had implicitly absolved the Ministry of Justice from responsibility for breaches of procedural requirements of the previous law, which applied to the fact of the case, and that such a finding was arbitrary and incompatible with the interests of justice and legal certainty (§§36 to 41 of the judgment).
Individual measures: The European Court awarded no just satisfaction as the applicants submitted no claim. It is unclear from the judgment whether the proceedings to register the applicants’ association has ended.
Information is awaited on the state of progress of the applicant’s association registration.
General measures:
New provisions regarding “state registration and state register of legal entities” are currently being examined in the framework of the group Ramazanova (Section 4.2).
• Given the peculiarity of this case, publication and dissemination of the Court judgment, together with a circular drawing the attention of judges to § 36 to 40 of the judgment, is awaited.

The Deputies decided to resume consideration of this item at their next examination of the Ramazanova group of cases.

- 9 cases against Bulgaria

391/03 Işyar, judgment of 20/11/2008, final on 20/02/2009
The case concerns the poor conditions in which the applicant was detained in Sofia Prison between 2001 and 2008 (violation of Article 3).
The European Court noted that the applicant’s allegations concerning his conditions of detention (overcrowding, lack of organised activities for prisoners, deplorable standards of hygiene, lack of free access to the sanitary facilities at any time of day and poor-quality food) were corroborated by other evidence in its possession, and in particular by the report on Sofia Prison drawn up by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) after its visit in 2006. In view of the cumulative effect of the poor conditions of detention, and bearing in mind the length of the applicant’s detention and his particular situation (due to the fact that he is an alien and does not speak Bulgarian), the European Court held that the suffering to which the applicant had been subjected amounted to degrading treatment.
The case also concerns the violation of his right to the free assistance of an interpreter (violation of Article 6§3e).The European Court observed that the way in which the courts had interpreted domestic law had resulted in the applicant’s being obliged to pay the interpretation costs incurred in the criminal proceedings against him.
Individual measures: The applicant seems still to be serving his prison sentence in Sofia Prison. The European Court awarded him just satisfaction in respect of the pecuniary damage flowing from the violation of Article 6§3e and of the non-pecuniary damage sustained.
Information is awaited on the current situation of the applicant, whether he is still detained and in what conditions.
General measures:
1) Violation of Article 3: The case present similarities to the Kehayov group (41035/98, Section 4.2).
2) Violation of Article 6§3e: The European Court pointed to a certain discrepancy of the case-law of the Supreme Court of Cassation as to whether the convicted person should be required to pay the interpretation costs (see §§20 and 47 of the judgment). It held that the violation in this case arose from the courts’ interpretation of domestic law (see §48 of the judgment).
In view of the development of the direct effect given by Bulgarian courts to the Convention and to the case-law of the European Court, publication of the European Court’s judgment and its dissemination to the competent courts seem to be sufficient measures for its execution.
Information is awaited in this respect; information on any other possible measures would be useful.

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 and general measures.

74012/01 Gavril Yosifov, judgment of 06/11/2008, final on 06/02/2009
The case concerns the fact that the applicant had no opportunity to take proceedings to challenge the lawfulness of his detention (violation of Art. 5§4).
In December 1998 the Sofia District Court found the applicant guilty as charged and sentenced him to three years’ imprisonment. After the Sofia District Court dismissed his appeal on procedural grounds, the applicant was detained on 30/11/1999 in Sofia Prison to serve his sentence. Later, the Sofia City Court found that the district court had erred in dismissing the applicant’s appeal and referred the case back to that court for fresh consideration of his appeal. Although the applicant’s conviction and sentence were since then no longer considered final, the Sofia City Court refused to consider whether the applicant should remain in custody, saying that it was for the Sofia District Court to decide on this matter. However, the latter failed to examine several subsequent requests for release made by the applicant. The applicant was finally released on 26/10/2000, following an order by the Sofia Prosecutor’s Office stating that the applicant’s conviction and sentence were no longer final and that he could not be kept in custody pursuant to them.
The European Court noted that although the applicant had been successful in challenging the dismissal of his appeal and that consequently, neither his conviction nor sentence had been final or enforceable, he had been unable to obtain a speedy judicial ruling as to the lawfulness of his detention, both the courts concerned having declined competence.
Individual measures: The detention at issue was ended on 26/10/2000. In March 2001 the applicant was convicted of some of the crimes of which he had been charged and sentenced to one and a half years’ imprisonment. The period of the detention in question was deducted from the applicant’s prison sentence. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.
Assessment: no individual measure seems to be necessary.
General measures: The European Court held that the situation at issue seemed to have been the result of unclear regulation of the courts’ competence in this domain and the fact that Bulgarian law entrusts all issues affecting the legality of the execution of prison sentences solely to the competent prosecutors and not to a judge.
It was also due to the lack in Bulgarian law of a general habeas corpus procedure whereby any individual deprived of his or her liberty, regardless of the grounds for it, is entitled to request a court to review the lawfulness of his or her detention and order his or her release if the detention is not lawful. The European Court noted furthermore that as matters stand, Bulgarian law envisages distinct procedures for challenging specific types of deprivation of liberty, such as pre-trial detention, confinement to a mental institution or detention pending deportation. The result of this approach is that individuals whose deprivation of liberty does not fall within a well-defined category are likely to face serious or even insuperable difficulties in challenging it (see §61 of the judgment).
Finally, when dismissing the government’s objection of non-exhaustion of domestic remedies, the European Court observed that the lack of clear case-law of Bulgarian courts showed the present uncertainty in practical terms of the remedy provided by the State Responsibility for Damage Caused to Citizens Act, insofar as complaints under Article 5§4 of the Convention were concerned (see §51 of the judgment).
Information is awaited on measures taken or envisaged to prevent 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 information to be provided on general measures.

73481/01 Bochev, judgment of 13/11/2008, final on 13/02/2009
The case concerns the excessive length of the applicant’s pre-trial detention, insufficient guarantees of the judicial review of that detention, the lack of an enforceable right to compensation and the monitoring of the applicant’s correspondence by the prison administration.
Charged with several offences including murder, the applicant was taken into custody on 09/05/1998. His pre-trial detention lasted until his conviction by the Sofia City Court on 14/10/2005, i.e. more than 7 years and 5 months. During the trial, the applicant made numerous unsuccessful requests for release, two of which remained undecided; the remaining ones were examined by the Sofia City Court either in private or at an oral hearing, while the applicant’s appeals were always examined in private by the Sofia Court of Appeal. On several occasions, relying on Article 268a of the 1974 Code of Criminal Procedure, these courts declined to deal with the applicant’s arguments concerning the existence of a reasonable suspicion against him. During the pre-trial detention, the entirety of the applicant’s correspondence, including that with his lawyers, was monitored.
The European Court held that the domestic courts had not properly justified detaining the applicant for more than 7 years and 5 months (violation of Article 5§3). It also considered that the applicant had not benefited from the guarantees enshrined in Article 5§4 as the scope of the judicial review had been too narrow and the proceedings had not been truly adversarial, the applicant having not been heard and having not had the opportunity to reply to the public prosecutor’s comments (violation of Article 5§4). Moreover, Bulgarian law did not provide the applicant with an enforceable right to compensation (violation of Article 5§5). Lastly, the European Court noted that between May 1998 and December 2000 and between June 2002 and April 2006, the interference with the applicant’s right to respect for correspondence had not satisfied the requirements of Article 8§2 (violation of Article 8).
Individual measures: The applicant is no longer detained pending trial as he was sentenced to terms of imprisonment. The European Court awarded him just satisfaction in respect of non-pecuniary damage sustained.
Assessment: in these circumstances, no individual measure seems necessary.
General measures:
1) Violation of Article 5§3: The European Court noted that in this case, in spite of the legislative reform of 01/01/2000, the Sofia City Court and the Sofia Court of Appeal had continued to rely in their decisions chiefly on the gravity of the charges raised and on the presumption that due to the seriousness of the offences of which he had stood accused, the applicant had automatically presented a risk of absconding and committing other offences. The European Court observed that this approach of the domestic courts was due to their expansive interpretation of the shift of the burden of proof under Article 152§2(3) of the 1974 Code of Criminal Procedure in its version after 01/01/2000, without invoking any concrete facts and arguments to demonstrate the need for the applicant to remain in custody (see §57 of the judgment).
In respect of this violation, the case presents similarities to that of Evgeni Ivanov (44009/02, 1065th meeting, September 2009) in which the Bulgarian authorities were invited to submit information on measures taken or envisaged in order to prevent other similar violations.
2) Violation of Article 5§4
(a) Besides the considerations quoted above (under Article 5§3), the European Court observed that following the introduction in May 2003 of the new Article 268a§2 in fine of the 1974 Code, presently reproduced in Article 270§2 in fine of the new 2005 Code, trial courts, i.e. those competent to examine requests for release made during trial, were barred from inquiring into the existence or otherwise of a reasonable suspicion against the accused. The European Court considered that such circumscription of the scope of judicial review of pre-trial detention, based on a misconception of the principle of impartiality, was in breach of the applicant’s right to have all aspects of the lawfulness of his detention examined by a court (see §66 of the judgment).
Information is awaited on measures envisaged or adopted as well as on the dissemination of the judgment to criminal courts, together with a circular drawing their attention to the requirements concerning the reasoning of the decisions on detention pending trial.
(b) The European Court also noted that the guarantees of adversarial procedure, including a hearing of the detainee and equality of arms, applied both before the first-instance court and the appeal court examining a request for release. However, several applicant’s requests for release were examined only in private by the Sofia City Court and the Sofia Court of Appeal. Furthermore, on at least two occasions the applicant did not have the opportunity to reply to the public prosecutor’s comments (see §§ 67-69 of the judgment).

The European Court observed (see §§ 34-35 of the judgment) that, following the adoption of the new Code of Criminal Procedure in 2005, Article 304§§1 and 2 of the 1974 Code was superseded by Article 270§2 of the 2005 Code, according to which detainees’ requests for release made during trial must be examined by the trial court at an oral hearing. Pursuant to Article 354§1 of the 2005 Code, reproducing Article 348§1 of the 1974 Code, the higher court may then examine the appeal in private or, if it considers it necessary, at an oral hearing.
Information is requested on measures envisaged or adopted as well as on the dissemination of the judgment to criminal courts, together with a circular drawing their attention to the guarantees of adversarial procedure under Article 5§4 of the Convention.
(c) The European Court also found a violation of Article 5§4 due to the failure by the Sofia City Court to rule on two of the applicant’s requests for release (see §70 of the judgment).
Information is awaited on the dissemination of the judgment, mainly to the Sofia City Court.
3) Violation of Article 5§5 (lack of an enforceable right to compensation for detention): This aspect of the case presents similarities to the Yankov group of cases (39084/97, Section 4.2).
4) Violation of Article 8: As regards the period before April 1999, the European Court noted that the government had failed to explain what had been the legitimate aim of systematically intercepting all of pre-trial detainees’ non-legal correspondence. Moreover, the inspection of all the applicant’s mail between April 1999 and December 2000 and between June 2002 and April 2006 was based on section 25(1) of Regulation No.2 of 1999 and section 132d(3) of the 1969 Execution of Punishments Act, both of which were set aside by the Bulgarian courts as being contrary to the 1991 Constitution (see §96 of the judgment). However, the European Court did not find any basis to assume that such interference existed following the adoption in September 2006 of the new section 178 of the Regulations for application of the 1969 Execution of Punishments Act. Under this new section, pre-trial detainees are entitled to unlimited correspondence which is not subject to monitoring; envelopes have to be sealed and opened in the presence of members of staff, in a manner allowing those members to make sure that they do not contain money or other prohibited items (see §§ 49 and 94 in fine of the judgment).
Assessment: in these circumstances, no general measure appears necessary.

The Deputies decided to resume consideration of this item at the next consideration of the Evgeni Ivanov case, in the light of information to be provided on general measures.

73281/01 Gulub Atanasov, judgment of 06/11/2008, final on 06/02/2009
The case concerns the unlawfulness of the committal of the applicant, suffering from schizophrenia and placed under house arrest pending proceedings against him, to a psychiatric hospital for the purpose of an examination.
Having been remanded in custody since July 1999, the applicant was placed under house arrest by decision of the Plovdiv Court of Appeal taken on 06/07/2000. On 03/08/2000 the investigator responsible for the case ordered an expert examination; the applicant was admitted to a psychiatric hospital for that purpose from 08/08 to 04/09/2000. In July 2001 the order placing the applicant under house arrest was lifted.
The European Court found that the question of the lawfulness of the applicant’s transfer to a psychiatric hospital concerned the legality of the deprivation of liberty within the meaning of Article 5§1, even though the applicant’s house arrest had been lawful. It further considered that the applicant’s transfer from his home to a psychiatric hospital had been illegal under domestic law, since it had not been based on a valid decision by a court as required by Article 155 of the Bulgarian Code of Criminal Procedure (violation of Article 5§1).
The case also concerns the fact that the applicant could not have his committal reviewed by a court and the lack of enforceable right to compensation.
The European Court noted that, even if the applicant had challenged his house arrest during his confinement in the psychiatric hospital, the courts examining such an appeal would have had no power to review the lawfulness of the investigator’s order of 03/08/2000 and, consequently, the lawfulness of the applicant’s detention in the psychiatric hospital (violation of Article 5§4).
In these circumstances, the European Court considered that Bulgarian law did not secure to the applicant an effective enjoyment of the right to compensation (violation of Article 5§5).
Individual measures: The applicant died in 2006. The European Court awarded his sons just satisfaction in respect of the non-pecuniary damage.
Assessment: in these circumstances no individual measure appears necessary.

General measures:
1) Unlawfulness of the applicant’s committal to a psychiatric hospital (violation of Article 5§1): The European Court found unconvincing the government’s argument that persons under house arrest or in custody could be placed in a psychiatric hospital for examination solely by decision of an investigator or a prosecutor. According to the European Court, such interpretation did not follow from the text and structure of the Code of Criminal Procedure (see § 76 of the judgment). In these circumstances, publication of the European Court’s judgment and its dissemination appear to be sufficient for its execution.
Information is awaited in this respect as well as on any other measure envisaged or already adopted.
2) Impossibility to challenge the applicant’s confinement (violation of Article 5§4): The violation in this case seems to constitute an isolated incident, as the applicant’s placement in the hospital should have been ordered by a judicial decision which could then be appealed to a court.
Assessment: in these circumstances no general measure appears necessary.
3) Lack of an enforceable right to compensation for detention in contravention of the provisions of Article 5 (violation of Article 5§5): The case present similarities to the Yankov group of cases (39084/97) (Section 4.2).

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 general measures.

68294/01 Kandzhov, judgment of 06/11/2008, final on 06/02/2009
The case concerns unlawful arrest and detention of the applicant in July 2000 on charges of “hooliganism” and “insult”, for displaying a banner deemed to insult the Minister of Justice and gathering signatures calling for the Minister’s resignation (violation of Article 5§1).
The European Court noted that at the material time insult was a privately prosecutable offence, which could not attract a sentence of imprisonment and in respect of which the police had no power to conduct preliminary investigations. As regards the charge of hooliganism, the European Court referred to the relevant domestic decisions that had not contained anything which could suggest that the authorities could have reasonably believed that the applicant’s conduct had constituted hooliganism, as well as to the conclusion of the Supreme Court of Cassation according to which the applicant’s actions had not amounted to the constituent elements of that offence. It followed that the applicant’s detention between 10/07/2000 and 14/07/2000 had not constituted a “lawful” deprivation of liberty effected “on reasonable suspicion” of his having committed an offence (violation of Art. 5§1).
The case also concerns a violation of the applicant's right to be brought promptly before a judge after his arrest (violation of Article 5§3). The European Court noted that the applicant had been brought before the Pleven District Court three days and 23 hours after his arrest, i.e. at the last possible moment when the 72-hours limit for detention had been about to expire. As it could see no special difficulties or exceptional circumstances which would have prevented the authorities from bringing the applicant before a judge much sooner, particularly in view of the dubious legal grounds for his detention, the European Court considered that this time-frame did not appear prompt as required under Art. 5§3.
Finally, the case concerns a violation of the applicant’s freedom of expression due to the fact that the measures taken against him were not “prescribed by law” and were disproportionate to the legitimate aim pursued (violation of Art. 10).
Individual measures: The applicant is no longer detained. He was released four days after his arrest. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained.
Assessment: no individual measure appears necessary.
General measures: The European Court noted that the decision of the prosecutor in charge to extend the applicant’s detention blatantly ignored the provisions of domestic law which were clear and comprehensible (see §§ 59-60 of the judgment). Furthermore, the European Court noted that the prosecutor had not taken the necessary measures to ensure the applicant’s immediate appearance before the competent court, as required by domestic law. On the contrary, he had waited until the last moment when the maximum time-limit for detention was about to expire to bring the issue of the applicant’s detention before the court. In the light of these considerations, the present violation seems to constitute an isolated incident due to the specific circumstances of the case. Publication of the European Court’s judgment and its dissemination to the competent authorities appear to be sufficient measures for the purposes of execution.

Information is awaited in particular on publication and dissemination of the judgment to the competent authorities.

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 general measures.

15239/02 Velted-98 AD, judgment of 11/12/2008, final on 11/03/2009
The case concerns the unfairness of administrative proceedings brought by the applicant company seeking revocation of a ministerial decree relating to the privatisation of a public company for which it had unsuccessfully submitted a bid (violation of Article 6§1).
The European Court observed that in its judgment of 19/10/2001 the Supreme Administrative Court had failed to examine an issue qualified as substantial by its first chamber when it ruled on the case and on which the parties had exhaustively commented.
Individual measures: The European Court held there was no causal link between the violation found and the alleged pecuniary damage, and awarded the applicant company just satisfaction in respect of non-pecuniary damage sustained.
Information is awaited on any possible individual measures in favour of the applicant company.
General measures: The violation found derives from the Supreme Administrative Court’s failure to give an adequate response to the applicant company’s arguments. Publication of the European Court’s judgement and its dissemination to that court therefore appear to be sufficient measures to prevent similar violations.
Information is awaited in this respect.

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 and general measures.

72001/01 Atanasova, judgment of 02/10/2008, final on 02/01/2009
The case concerns the fact that the applicant was denied access to a court, as her compensation claim submitted in criminal proceedings could not be examined due to the prescription of the alleged criminal offence (violation of Article 6§1).
In June 1994 the applicant, who had been injured in a road accident, joined as a civil party criminal proceedings brought against the driver presumed responsible, seeking compensation for the physical injury she had suffered. In June 2002, the Bulgarian courts found that her civil claim could not be examined because the criminal proceedings had been discontinued, the prescription period having elapsed in the meantime. The applicant was told that it was still open to her to apply to the civil courts but she did not use this opportunity, considering that the criminal courts should have decided her civil claim.
The European Court noted that the applicant had used the possibility available to her in domestic law of joining criminal proceedings and seeking compensation by those means. She therefore had a legitimate expectation that the courts would eventually determine her claim. It was solely because of the Bulgarian authorities’ tardiness in dealing with the case that the prescription period had expired, and that as a result it had become impossible for the applicant to obtain a decision on her compensation claim via the criminal proceedings. The Court took the view that in such circumstances, although it was formally correct to say that the applicant could seek compensation in the civil courts, she could not be required to wait until the prosecution of the offender had become time-barred through the negligence of the judicial authorities before bringing a new civil action, a number of years after the accident.
The case also concerns the excessive length of the criminal proceedings at issue (8 years) (violation of Article 6§1).
Individual measures: The proceedings in question have ended. The European Court awarded just satisfaction in respect of the non-pecuniary damage the applicant suffered on account of the violations. The applicant had the possibility, at least until the end of 2005, to lodge her claim for compensation for the bodily harm suffered before civil courts.
Assessment: in these circumstances no individual measure appears necessary.
General measures:
1) Excessive length of criminal proceedings: the case present similarities to the Kitov group (section 4.1).
2) Lack of access to a court: this violation seems to be linked mostly with the problem of excessive length of criminal proceedings.

Information is nevertheless awaited on measures envisaged or already taken by the Bulgarian authorities, mainly with a view to raising criminal courts’ awareness of issues arising for civil parties in cases of excessive length of criminal proceedings. Information would also be appreciated on remedies available to civil parties in order to challenge the excessive length of the criminal proceedings to which they are parties (see in this respect Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies).

The Deputies decided to resume consideration of these items at the next examination of the Kitov group of cases.

54252/00 Manolov and Racheva-Manolova, judgment of 11/12/2008, final on 11/03/2009
The case concerns nationalised property acquired by the applicants and the subsequent proceedings brought against them by the heirs of the pre-nationalisation owners under the Restitution of Stores, Workshops and Storage Houses Act 1991. As a result the applicants were ordered to vacate their property in May 1997, without compensation (violation Article 1 of Protocol No. 1).
While accepting that the 1991 Act pursued a legitimate aim in the public interest, as part of the restitution legislation adopted after the fall of communism, the European Court noted that this Act did not aim at securing redress for expropriations without compensation, as the Restitution Law 1992 did (see the case of Velikovi and others), but at restoring the title of persons who had sold their property to the state in the 1970s and had received payment for it. The injustice which the 1991 Act sought to correct was thus less significant than the arbitrary expropriations for which redress was provided by the Restitution Law 1992. Therefore the European Court found it difficult to accept that the aim of correcting injustices like those that were the subject matter of the 1991 Act could justify depriving the applicants of their property lawfully acquired fifteen years earlier. The European Court finally noted that under the 1991 Act the applicants could only claim compensation for the improvements they had made to the property, not the value of the property itself; moreover, such claim of the applicants could only result in a token award as inflation had drastically reduced its value.
Individual measures: The European Court awarded the applicants just satisfaction covering their pecuniary and non-pecuniary damage.
Assessment: in these circumstances, no individual measure appears necessary.
General measures: The case presents certain similarities to the Velikovi and others group (3278/98, Section 4.2) which concerns application of the 1992 Law on the Restitution of Real Property. However, the present case differs from this group in that it concerns specific conditions of the restitution set forth in the Restitution of Stores, Workshops and Storage Houses Act 1991.
Information is awaited on any measures taken or envisaged to prevent 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 information to be provided on general measures.

19612/02 Kalkanov, judgment of 09/10/2008, final on 09/01/2009
The case concerns unfairness of civil proceedings brought by the applicant in order to have his dismissal revoked. When deciding on the applicant’s appeal on points of law, the Supreme Court of Cassation refused to examine a decisive argument raise by him on the pretext that it was a new argument which had not been examined by the lower courts and required the gathering of new evidence.
The European Court considered that this conclusion of the Supreme Court of Cassation was clearly erroneous as it was not consonant with the material in the file nor with the findings of the lower courts. The argument had actually been submitted in the applicant’s initial statement of claim and had therefore been raised before the lower courts (violation of Article 6§1).
Individual measures: The proceedings before the Supreme Court of Cassation challenged by the judgment led to the refusal of the applicant’s request to have his dismissal revoked. The applicant did not submit any just satisfaction claim to the European Court.
Information is awaited on any individual measures taken or envisaged.
General measures: The violation in this case seems to constitute an isolated incident, due to a mistake by the Supreme Court of Cassation. Publication of the European Court’s judgment and its dissemination to the judges of that court appear to be sufficient for the execution of the judgment.

Information is awaited in this respect.

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 the individual and general measures.

- 3 cases against Cyprus

4268/04 Panovits, judgment of 11/12/2008, final on 11/03/2009
This case concerns three separate violations of the applicant’s right to a fair trial due to the lack of legal assistance during police questioning; the use of the applicant’s confession obtained under police questioning at trial and the trial court’s confrontation with the applicant’s lawyer during the trial.
The European Court noted that as the applicant was a minor and not assisted by a legal guardian, his questioning by the police should have been done with due regard to his vulnerability. Therefore, “The lack of provision of sufficient information on the applicant’s right to consult a lawyer … constituted a breach of his defence rights.” (paragraph 73) (violation of Article 6(3)(c) in conjunction with 6(1)).
The Court also found that “the use in trial of the applicant’s confession obtained in such circumstances irreparably undermined his rights of defence” (paragraph 86) (violation of 6(1)).
Finally, with regard to the trial court’s confrontation with the applicant’s defence lawyer, Mr Kyprianou, the European Court referred to its judgment in the case he had himself brought before it, Kyprianou against Cyprus (Application No. 73797/01) (1072nd meeting, December 2009), which related to the same incident. During the proceedings the trial court engaged in various disagreements with the applicant’s lawyer, sentencing him to 5 days' imprisonment for contempt of court while he was conducting the defence. The European Court found that the trial court had failed to satisfy the requirements of subjective impartiality as the judges' personal conduct demonstrated that they did not succeed in detaching themselves sufficiently from the situation. Further, their interference with the conduct of the defence through the contempt proceedings and subsequent imprisonment of the applicant’s lawyer was disproportionate. The trial court’s “handling of the confrontation … rendered the trial unfair” (§101) (violation of Article 6§1)
Individual measures: The applicant did not submit a claim for just satisfaction.
Following the trial, the applicant was convicted and is currently serving concurrent sentences of 6 and 14 years in Nicosia Central Prison.
The European Court stated that the applicant should “be put in the position that he would have been in had the requirements of [Article 6] not been disregarded and that the most appropriate form of redress would in principle be trial de novo or the reopening of the proceedings, if requested” (§103).
Information is awaited on whether the applicant has requested a trial de novo or reopening of the proceedings following the judgment of the European Court.
General measures:
1) Violation of Article 6§3c in conjunction with Article 6§1: The European Court considered that given the applicant’s vulnerability as a minor without a guardian, the authorities did not provide sufficient information on the applicant’s right to consult a lawyer. The Court noted that “the passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation” (paragraph 72).
2) Violation of Article 6§1 in relation to the use of the applicant’s confession: The European Court noted that the applicant’s conviction was based to a decisive extent on the confession obtained under police questioning stating: “The circumstances in which the confession had been taken were not addressed by the trial court and remain unclear” (paragraph 85).
3) Violation of Article 6§1 in relation to the trial court’s confrontation with the applicant’s defence lawyer: this issue is raised in the case of Kyprianou v Cyprus (Section 4.2).

Information is awaited on measures envisaged or already taken to avoid similar violations.

The Deputies decided to resume consideration of this item:
1. at their 1065th meeting (15-16 September 2009) in the light of information to b provided on individual measures;
2. at latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided general measures.

39058/05 Kyriakides, judgment of 16/10/2008, final on 16/01/2009
39627/05 Taliadorou and Stylianou, judgment of 16/10/2008, final on 16/01/2009
These cases concern damage to the moral integrity and reputation of the applicants, senior officers of the Cyprus Police, due to the Supreme Court’s failure to provide adequately grounds for decision overturning the award of compensation for non-pecuniary damage sustained by the applicants following their unjustified dismissal by the state authorities (violation of Article 8).
In the Kyriakides case, the applicant was dismissed for negligent exercise of his duties without trial or disciplinary hearing, following the conclusion of an Independent Investigation Commission that two of his subordinate officers had been involved in the torture and ill-treatment of suspects.
The subordinates in question were acquitted.
In the case of Taliadorou and Stylianou, criminal proceedings were brought against the applicants for torture and ill-treatment of suspects: the applicants were acquitted as there was no prima facie case against them. However, following the conclusions of an Independent Investigating Commission they were subsequently dismissed without trial or disciplinary hearing.
The applicants brought proceedings in the national courts seeking reinstatement and compensation for their dismissal. On appeal, the Supreme Court overturned the decisions awarding them damages.
The European Court noted that the applicants had never been convicted of the offences for which they had been dismissed. It found that due to their unwarranted dismissal the state authorities had affected the enjoyment of their private life by effectively prejudicing their moral integrity and reputation (§52 of the judgment in Kyriakides and §56 of the judgment in Taliadorou and Stylianou). By refusing to award the applicants damages, the Supreme Court denied the applicants relief in respect of damage caused by unlawful administrative acts, without sufficient explanation (§54 (Kyriakides) and §58 (Taliadorou and Stylianou)).
Individual measures: The Court awarded the applicants just satisfaction in respect of non-pecuniary damage sustained.
Following the national proceedings, the applicant was reinstated on 05/12/1997. He has since retired.
Assessment: no further individual measures appear necessary.
General measures:
Information is awaited on any measures taken or envisaged in light of the judgment.

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 information to be provided on general measures.

- 4 cases against the Czech Republic

38238/04 Forminster Enterprises Limited, judgment of 09/10/2008, final on 09/01/2009
The case concerns the continued seizure of shares belonging to the applicant company, resulting in the suspension of its right to dispose of them (violation of Article 1 of Protocol No. 1). This measure was ordered in 1997 by a prosecutor in the framework of criminal proceedings instituted against a third person. In 2003 the Olomouc Senior Prosecutor and the Prague High Court rejected the applicant company’s application for restoration of its rights and annulment of the seizure. In 2006 the courts decided to extend it until the end of the criminal proceedings, which are still pending. The applicant company’s constitutional appeal challenging this extension was pending when the Court adopted its judgment. After a thorough analysis of domestic legislation and practice as they stood at the time, the European Court considered the seizure as being lawful and pursuing a legitimate aim. However, taking into account its duration (more than 11 years) and the considerable value of the assets concerned (representing 55% of the registered capital of a joint stock company), it found that an excessive burden had been placed on the applicant company as a fair balance had not been struck between its interests and the general interest.
Individual measures: The European Court reserved the question of just satisfaction. Since the criminal proceedings at issue are still pending, the seizure seems still to be in force.
Information is awaited on the current situation of the applicant company, in particular whether the Constitutional Court has decided its constitutional appeal and whether the seizure has been lifted.
General measures: The violation in the present case seems to constitute an isolated incident due to the duration of the seizure and the value of the shares concerned. Given the direct effect of the European Court's case-law in the Czech Republic, the publication and dissemination of this judgment appear to be sufficient for the execution of this judgment.
In addition, even if the European Court had not questioned the lawfulness of the measure, the provisions of the Code of Criminal Procedure concerning seizure of items were amended as from 01/01/2002 (Act No. 265/2001), so that they are now explicitly applicable to securities such as shares and provide the review of such seizure by an ordinary court.
Information is awaited on publication and dissemination of the European Court’s judgment to the competent authorities.

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 the individual and general measures.

19970/04 Husák, judgment of 04/12/2008, final on 04/03/2009
The case concerns the unfairness of proceedings relating to the applicant’s pre-trial detention as he could not appear in person (violation of Article 5§4).
The applicant was arrested on suspicion of fraud and placed in pre-trial detention in June 2003. He made several applications for release, which were dismissed without a hearing when examined both by the Brno Municipal Court and by the Brno Regional Court; nor was the applicant heard by the authorities deciding ex officio on the extension of his pre-trial detention.
The European Court considered that since the domestic authorities had not provided the applicant with an adequate opportunity to participate in proceedings which were decisive for the continuation of his detention, the applicant had been deprived of a judicial remedy as required by the Convention.
Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. The judgment says nothing concerning the current status of the applicant.
Information is awaited in this respect.
General measures: The Court held inter alia that the first fundamental guarantee which flows naturally from Article 5§4 of the Convention is the right to an effective hearing by the judge examining an appeal against detention. For those whose detention falls within the ambit of Article 5§1 (c) of the Convention, Article 5§4 requires that an adversarial hearing is held; this normally involves legal representation and, where appropriate, the possibility of calling and questioning witnesses (see § 41 of the judgment).

By judgment No. 45/04 (published in the Official Journal of 17/06/2005 under No. 239/2005), the plenary of the Constitutional Court repealed the provision of Article 242§2 of the Code of Criminal Procedure (providing that whenever the court decides without a hearing, persons other than the members of the chamber and the registrar are excluded from the session). It took the view that when courts decide on an appeal of the accused against the prosecutor’s decision to extend his detention, Article 5§4 of the Convention required that the accused is heard; in the Constitutional Court’s words, this principle could nevertheless not be applied to the proceedings relating to the detainee’s requests for release (see § 33 of the judgment). The European Court considered however that, as far as procedural guarantees provided by Articel 5§4 were concerned, there was no reason to distinguish between ex officio proceedings relating to the extension of the detention and proceedings concerning the applicant’s requests for release (see § 44 of the judgment).
Information is awaited on measures envisaged or adopted to prevent similar violations as well as on publication of the judgment and its broad dissemination to competent courts (criminal courts and the Constitutional Court), in order to draw their attention to the procedural guarantees provided by Article 5§4.

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 submitted on individual and general measures.

298/07 Rashed, judgment of 27/11/2008, final on 27/02/2009
The case concerns the unlawful detention of an alien asylum-seeker and the lack of appropriate judicial review of that measure.
The applicant, who is an Egyptian national, applied for asylum on arriving at Prague international airport, on 23/08/2006, and was placed ex lege in the reception centre in the airport’s transit zone. After the Ministry of Interior rejected his asylum application, the applicant was transferred, on 10/09/2006, to the Velké Přílepy facility of that ministry, established following a minister’s decision as a detached extension of the airport reception centre. In April 2007, the applicant was returned to the reception centre; in June 2007 he left the country on a voluntary-return basis after his asylum application had been definitively rejected.
In the meantime, the applicant filed an administrative appeal against his detention in Velké Přílepy with the Prague City Court, alleging that as the Ministry of Interior had not decided on his asylum application within the time-limit set by Article 73§2 of the Asylum Act, he should have been transferred to an ordinary asylum centre which he would have been free to leave. The decision of that court finding that it lacked competence to examine such appeal and inviting the applicant to file a claim under the Code of Civil Procedure was later quashed by the Supreme Administrative Court. This court held that the administrative appeal provided in Article 82 of the Code of Administrative Procedure was the only legal avenue available to the applicant, but did not satisfy the requirement of speediness. It also found, obiter dictum, that the Velké Přílepy facility could not be considered as a detached extension of the airport reception centre and that, consequently, the applicant should have enjoyed the rights of those placed in an ordinary asylum centre and his detention in that facility had no legal basis. On 09/01/2008, the proceedings were closed without any decision on the merits as the applicant had returned to Egypt.
The European Court noted that the applicant had been deprived of his liberty without any formal decision to take him into custody and that he had thus been entitled to speedy and effective review by a court. However, no judicial decision on the lawfulness of his detention had been given during the ten-month detention period (violation of Article 5 § 4). Furthermore, the European Court observed that the quality of the Czech Asylum Act in force at the relevant time had not been sufficient to constitute a legal basis for the applicant’s deprivation of liberty, as it did not afford adequate protection or the necessary legal certainty to prevent arbitrary interference by the public authorities with the rights guaranteed by the Convention (violation of Article 5 § 1).
Individual measures: In June 2007, the applicant returned to his home country. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained.
Assessment: no individual measure seems necessary.
General measures: The European Court noted that the contested provision of Article 73 of the Asylum Act No. 325/1999 was considerably amended on 21/12/2007 (see §75 of the judgment). As from this date, the amended provision provides the possibility to detain an alien asylum seeker in a centre other than the airport reception centre. It also sets the maximum time-limits for decisions by the competent authorities on an asylum application (beyond which the Ministry of Interior must authorise the alien to enter the territory and transfer him to an asylum centre), as well as the maximum duration of the detention of an asylum seeker in the airport reception centre (see §30 of the judgment).

Information is awaited on any other measures taken or envisaged to secure for asylum seekers judicial review of their detention as required by Article 5§4 of the Convention, as well as on publication of the judgment and its dissemination to competent authorities.

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 general measures.

72034/01 Družstevní Záložna Pria and others, judgment of 31/07/2008, final on 26/01/2009
The case concerns interference with the right of the applicant, a credit union, to the peaceful enjoyment of its possessions due to its being placed in receivership without sufficient procedural guarantees against arbitrariness (violation of Article 1 of Protocol No. 1).
In January 2000 the public supervisory authority (the Office for the supervision of Credit Unions) placed the applicant credit union in receivership on the grounds of alleged illegal transactions. A receiver was consequently designated to replace the applicant credit union’s decision-making bodies which no longer controlled its business. In April 2002, after two renewals of the receivership, the supervisory authority withdrew the applicant credit union’s licence. Judicial appeals brought by the applicant credit union contesting the receivership orders were dismissed, on 21/06/2002 by the Prague High Court as unfounded and on 09/02/2004 by the Supreme Administrative Court on the ground that only the receiver had authority to lodge such a request under section 28(d) of the Credit Unions Act, as applicable at the relevant time. A third appeal was still pending before the Supreme Administrative Court when the European Court gave judgment, as well as the applicant credit union’s claim for damages, filed in April 2002 pursuant to Act No. 82/1998. On 28/04/2004 the Brno Regional Court declared the applicant credit union to be insolvent. The insolvency proceedings are still pending.
The European Court noted that the applicant credit union, once placed in receivership, had been denied by the receiver access to its business and accountancy documents and had subsequently been unable to challenge that denial before a court. It concluded that the interference was unjustified in that the state already exercised total control over its activities, thus reducing the risk at the origin of the receivership order.
The case also concerns the violation of the applicant credit unions right of access to a court. The Court noted in this respect that the decisions to place the applicant credit union in receivership had been made by a state authority answerable to the Ministry of Finance. Furthermore, when dealing with the applicant credit union’s request for judicial review in June 2002, the High Court had been prevented from assessing whether there had been any factual basis for receivership; it had limited its review to the question of whether the decisions challenged had been within the authority’s discretionary power, without examining whether they had been lawful. Thus, the determination of the applicant credit union’s civil rights was not subject to a full judicial scrutiny (violation of Article 6§1).
Individual measures: The European Court expressed no opinion on the question whether the statutory requirements for the imposition of receivership were met in this case or on the issue of whether the impairment struck a fair balance between the rights of the applicant credit union and the demands of the general interest of the community (see §95 of the judgment). The insolvency proceedings, the proceedings for damages and on the third application for judicial review were pending at the time of the delivery of the European Court’s judgment. Furthermore, the European Court reserved the question of just satisfaction while awaiting a possible friendly settlement between the parties.
General measures:
1) Violation of Article 6§1: Following the Constitutional Court’s judgment of 27/06/2001 (No. 276/2001) repealing Part V of the Code of Civil Procedure and declaring it incompatible with Article 6, the Code of Administrative Court Procedure (Act No. 150/2002) was enacted (entry into force on 01/01/2003). It replaced Part V of the Code on Civil Procedure and reformed administrative judiciary so that administrative courts have full jurisdiction as required by Article 6§1 (see §§ 68-70 and § 109 of the judgment).
Assessment: no further general measure appears necessary.

2) Violation of Article 1 of Protocol No. 1:
Information is awaited on any measures taken or envisaged to prevent new, similar violations.

The Deputies
1. 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 general measures;
2. decided to resume consideration of possible individual measures once the European Court had given judgment on the just satisfaction.

- 1 case against Denmark

32848/06 Moesgaard Petersen, judgment of 11/12/2008, final on 11/03/2009
The case concerns the excessive length of criminal proceedings against the applicant, convicted in 2004 (violation of Article 6§1).
Proceedings began on 2/07/1996 with a search of the applicant's business premises. They ended on 21/06/2006 when the Leave to Appeal Board refused the applicant's request for leave to appeal to the Supreme Court. They thus lasted for almost 10 years.
The European Court found to be excessive the overall length of the proceedings, and, in particular, the period of inactivity of one year and 8 months before the Leave to Appeal Board.
Individual measures: The proceedings have ended and the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. He had submitted no claim for pecuniary damage.
Assessment: no further individual measure appears necessary.
General measures: The European Court noted that the investigation and prosecution authorities and also the first- and second-instance courts dealt with the case diligently given its complexity. However, excessive delays occurred before the Leave to Appeal Board, in particular, as the case was dormant due to a mistake for about 8 months (see §§ 48-49 of the judgment). The violation therefore seems to constitute an isolated incident resulting from the particular circumstances of the case. Consequently, the dissemination of the European Court’s judgments to this authority should suffice to raise its awareness of the Convention’s requirements.
Information is awaited in this respect.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on general measures, namely the dissemination of the European Court’s judgment to the Leave to Appeal Board.

- 3 cases against Finland

2872/02 K.U., judgment of 02/12/2008, final on 02/03/2009
The case concerns the lack of practical and effective protection of the applicant’s right to respect for private life, due to the fact that the identity of the person who had posted an advertisement of a sexual nature about the applicant could not be obtained from the Internet provider pursuant to the legislation in place at the time (violation of Article 8).
In March 1999 an unknown individual posted an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement, giving a certain number of the applicant’s personal details, announced that he was looking for an intimate relationship with a boy of his age or older. After the applicant’s father requested the police to identify the author of the advertisement in order to bring charges, the service provider refused to divulge the identity of the author as it considered itself bound by the confidentiality of telecommunications. Subsequently, the Helsinki District Court and the Court of Appeal also refused the police’s request made under the Criminal Investigations Act; they found that there was no explicit legal provision in such a case, considered under domestic law to concern calumny, which could oblige the service provider to disregard professional secrecy and disclose the information sought. In April 2001, the prosecutor found that the offence under the Personal Data Act, allegedly committed by the director of the company running the website at issue by publishing a defamatory announcement without verifying the identity of the sender, had become time-barred.

The Court considered that the posting of the Internet advertisement about the applicant had been a criminal act which called for a criminal-law response, and that effective deterrence had to be reinforced through adequate investigation and prosecution. It observed that the incident had taken place in 1999, that is, at a time when it had been well known that the Internet could be used for criminal purposes and when the widespread problem of child sexual abuse had also been well known. The legislature should therefore have provided a framework for reconciling the confidentiality of Internet services with the prevention of disorder or crime and the protection of the rights and freedoms of others. Although such a framework had subsequently been introduced under the Exercise of Freedom of Expression in Mass Media Act, the Court noted that it had not been in place at the relevant time, with the result that the state had failed to protect the right to respect for the applicant’s private life as the confidentiality requirement had been given precedence over his physical and moral welfare.
Individual measures: The applicant was awarded just satisfaction in respect of non-pecuniary damage sustained. The new Act No. 460/2003 (see below) cannot be applied to the applicant's case; in any case, the applicant can no longer bring private prosecution as the offence is time-barred (two years from the time when the act was committed).
Assessment: in these circumstances, no individual measure appears necessary.
General measures: The European Court noted that the deficiency in question, that is, the lack of the framework for reconciling the various competing interests in this field, was addressed subsequently to the facts of the case, on 01/01/2004 when the Section 17 of the Exercise of Freedom of Expression in Mass Media Act No. 460/2003 came into force (see §§ 21 and 49 of the judgment).
According to this provision, on the request of police, a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the release of the identifying information to the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the court within three months of the publication of the message in question.
Assessment: in these circumstances, no general measure appears necessary.

The Deputies:
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.

18620/03 Juppala, judgment of 02/12/2008, final on 02/03/2009
The case concerns the violation of the right to freedom of expression of the applicant, who was convicted in February 2002 for defamation of T., her son-in-law, after she had taken her grandson to a doctor and voiced a suspicion that he might have been hit by his father (violation of Article 10).
When overturning the judgment of the Tampere District Court which had rejected the charge of defamation, the Turku Court of Appeal found, in particular, that the fact that the applicant had discussed the bruise with the boy, only three years old at the time, and that he had told the doctor that his father had hit him did not constitute reasonable enough cause for the allegation of abuse; nor had the applicant given any other reasons on which she had based her allegation. Considering the applicant’s action excusable, the court did not impose any sentence on her but ordered her to compensate T. for the distress caused.
The European Court noted that the applicant’s criminal conviction had been “prescribed by law” as it had been based on a reasonable interpretation of Chapter 27, article 2(1) of the Penal Code in force at the time (until 01/10/2000).
The European Court found it alarming that the Court of Appeal had taken the view that, even though there was no doubt that she had seen her grandson’s bruised back, the applicant had not been entitled to repeat what the boy had told her, that is, that he had been hit by his father. Voicing a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure should be available to any individual without fear of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred. Moreover, it had not been argued before any court that the applicant had acted recklessly. The European Court thus concluded that the interference with the applicant’s right to freedom of expression had not been justified by sufficient reasons and had therefore failed to answer any “pressing social need”.
Individual measures: The sums that the applicant had been sentenced to pay as a result of her conviction are covered by the just satisfaction awarded by the European Court, which also took into account the non-pecuniary damage sustained.

The applicant may, under Finnish law, seek the reopening of criminal proceedings having infringed the European Convention of Human Rights (see, for example, the case of Nikula, final resolution ResDH(2006)51 adopted on 02/11/2006).
Assessment: in these circumstances, no individual measure appears necessary.
General measures: The Court considered that sufficient reasons for the interference had not been shown to exist in this case and that the restriction on the applicant’s right to freedom of expression had failed to answer a “pressing social need” (see § 45 of the judgment). Publication of the European Court’s judgment and its dissemination to the Turku Court of Appeal and, if need be, to other courts competent in this domain appear therefore to be sufficient for the execution of the judgment.
Information is awaited in this respect.

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 general measures, namely publication and dissemination of the judgment to the competent courts.

*3514/02 Eerikäinen and others, judgment of 10/02/2009, final on 13/03/2009
The case concerns the violation of the right to freedom of expression of the applicants, a freelance journalist, the former editor-in-chief (now deceased) of a publishing company and the publishing company, against whom a civil court found that they had invaded the privacy of others. On 21/11/2000, the Supreme Court ordered the applicants to pay damages because of a newspaper article the first applicant had written in 1997 concerning criminal proceedings pending against a business-woman accused of fraud against the social security authorities and insurance companies.
The European Court observed that coverage of the criminal case in the article had been based on public facts, concerned a matter of legitimate public interest and its purpose had been to contribute to a public discussion. It noted furthermore that the Supreme Court had failed to analyse the significance of several elements and that the grounds relied on, although relevant, were thus not sufficient to justify the interference in terms of a “pressing social need” (violation of Article 10).
Individual measures: The European Court awarded the applicants just satisfaction in respect of both non-pecuniary and pecuniary damages, including all the sums they had been ordered to pay.
Assessment: no individual measure seems necessary.
General measures: The European Court found that the Supreme Court had not convincingly established the “necessity” of the restriction of the exercise of the freedom of expression, as it had not given sufficient reasons to justify that ordering the applicants to pay damages responded to a “pressing social need”. The violation found derives therefore from a national court’s failure to take into account the criteria set out by the Convention with regard to freedom of expression.
Information is awaited on the publication of the European Court’s judgment and its dissemination in particular to the Supreme Court as well as on other measures which might be envisaged to prevent 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 information to be provided on general measures.

- 2 cases against France

5608/05 Renolde, judgment of 16/10/2008, final on 16/01/2009
The case concerns the suicide of the applicant’s brother, a psychiatrically disturbed prisoner, during 45 days’ solitary confinement in 2000.
The European Court found that the authorities had failed in their positive obligation to protect the right to life of Mr Joselito Renolde, whose vulnerability called for particular protection (violation of Article 2). As the authorities had not ordered him to be placed in a psychiatric establishment, they should at least have ensured that he received appropriate medical care, but they did not. In particular, the failure to check that he took his medication every day contributed to his death. No account appears to have been taken of his mental state before ordering solitary confinement – only three days after an earlier suicide attempt.

The Court also found that in these circumstances the solitary confinement of Mr Renolde constituted in itself inhuman or degrading punishment or treatment (violation of Article 3). The Court stated that it was among other things struck by the imposition of the maximum disciplinary sanction (solitary confinement with no visits and no contact with other prisoners) for the most serious category of offence, with no consideration being given to his mental state or to the fact that it was his first such incident. This was a heavy punishment, designed to weaken his physical and moral resistance; the file shows that Mr Renolde was upset and distressed during this period.
Individual measures: The applicant did not ask for just satisfaction before the European Court.
• The French authorities’ observations on individual measures would be useful.
General measures:
1) Failure to provide appropriate medical treatment for Mr Renolde, given the psychiatric disorders from which he suffered: In the case of Rivière against France (see Final Resolution CM/Res/DH(2009)2), the French authorities presented a series of measures involving principally the establishment of a new hospitalisation regime for psychiatrically disturbed prisoners requiring full-time medical care (in particular the creation of Special Hospitalisation Units (UHSA)).
In the Renolde judgment, the Court paid particular attention of the prisoner’s medical treatment (the advisability of hospitalisation was manifestly not discussed – see §97) examining in particular how Mr Renolde’s prescribed medicaments were administered. It expressed in particular the greatest doubt as to the advisability of leaving a prisoner with acknowledged psychotic problems in charge of managing his own daily treatment with no supervision whatsoever (§104).
Information would seem necessary on additional measures taken or envisaged.
2) Gravity of the disciplinary punishment imposed without taking account of Mr Renolde’s mental state: Recalling in particular its recommendations on the solitary confinement of persons with mental illness (§108) the Court reiterated that the vulnerability of such detainees called for special protection.
Information would seem necessary on measures taken or envisaged.

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 and general measures.

- 1 case against France and Romania

*6152/02 Dinu, judgment of 04/11/2008, final on 06/04/2009
The case concerns the failure to enforce a final decision adopted by Romanian courts in 1995 ordering the applicant’s former husband, living in France, to pay maintenance for their son, born in 1987 (violation of Article 6§1).
In July 1995, the applicant initiated the procedure provided for by the New York Convention on the Recovery Abroad of Maintenance. Authority to execute the Romanian decisions was issued in France only in April 2004 and the enforcement proceedings were ended in September 2007 by the relevant French court, which found that the debt in maintenance had been extinguished on 27/11/2006, at the latest.
The European Court found that both the Romanian and French authorities had failed to use all necessary endeavours to ensure speedy enforcement of the judicial decisions given in the applicant’s favour.
Individual measures:
Information is expected on measures taken or envisaged.
General measures:
1) With respect to Romania: The European Court (§ 57) noted delays in the transmission of the correspondence, ascribed to the Ministry of Justice. After the delivery of the exequatur, the ministry diligently fulfilled all its obligations (§58). The case presents similarities to the Sacaleanu group of cases (73970/01, Section 4.2).
2) With respect to France: The European Court (§57) found that the length of time taken to complete of the file concerning the authority to execute or the repeated requests of documents in this context was not reasonable, whilst the applicant recalled several times that the documents had been already submitted. Finally, it also observed that between 1999 and September 2001 there was a total lack of communication of the French authorities with the Romanian authorities and the applicant. After the delivery of the authority to execute, the ministry did however met its obligations (§58).

Information is expected on measures taken or envisaged.

The Deputies decided to resume the consideration of this item at the latest at their 1st DH meeting in 2010, in the light of information to be submitted on individual and general measures.

- 2 cases against Germany

10597/03 Ommer No. 1, judgment of 13/11/2008, final on 13/02/2009
26073/03 Ommer No. 2, judgment of 13/11/2008, final on 13/02/2009
The cases concern the excessive length of various criminal proceedings on charges of fraud against the same applicant concerning his business activities (violation of Article 6§1).
In the case of Ommer (No.1), proceedings concerning the DETAG investment trust corporation began on 19/02/1987 and ended on 24/09/2002 with the Federal Constitutional Court’s refusal to admit the applicant’s constitutional complaint about the excessive length of the criminal proceedings following his acquittal (final on 4/02/2002). The proceedings thus lasted for more than 15 years and 7 months (at the investigation stage and 3 levels of jurisdiction).
In the case of Ommer (No.2), the investigation proceedings against the applicant concerning property funds of the IHV company began on 6/12/1990 and ended on 3/02/2003 with the prosecutor’s decision to discontinue the proceedings. They thus lasted for approximately 12 years and 2 months.
The European Court noted in both cases that the applicant had not lost his victim status as German law did not provide adequate compensation for the excessive length of proceedings. In the Ommer (No.1) case, the domestic courts had acknowledged that the duration had been excessive. However, his sentence could not be reduced as he had been acquitted. Moreover, the reimbursement of certain legal fees and of loss of earnings of some 7 300 EUR was only a consequence of his acquittal and did not to provide compensation for the protracted length of proceedings against him.
As regards the Ommer (No.2) case, adequate redress had not been available because the proceedings had only been discontinued, and the applicant could not or no longer be found guilty of having committed a crime.
Individual measures: In both cases the proceedings are over and the European Court awarded just satisfaction in respect non-pecuniary damage. Under the head of pecuniary damage the applicant claimed that the length of proceedings had damaged his reputation and had occasioned the loss of customers, staff and the co-operation of several banks which had caused considerable losses of profit, resulting in the DETAG’s insolvency in 2002. The Court noted in this respect that it could not be excluded that the length of the proceedings caused him loss of profit which he would not have suffered had the proceedings been ended sooner with the same outcome (the applicant’s acquittal or the discontinuation of the proceedings, respectively). However, the Court was unable to assess even approximately the amount of damage suffered by the applicant and could not speculate about it.
Information is awaited on the applicant’s current situation.
General measures:
1) Lack of staff: The European Court found that unreasonable delays occurred before the Cologne investigation authorities and Regional Court due to lack of staff (see §55 of the Ommer (No.1) judgment).
Information is awaited on measures taken or envisaged to prevent new, similar violations.
2) Compensatory remedy for excessive length of criminal proceedings following acquittal or discontinuation of investigations: The European Court also underlined that the domestic law did not provide for a sufficient compensatory remedy to redress excessive length of criminal proceedings following an acquittal (Ommer, No.1) or discontinuation (Ommer No.2) of the proceedings.
Information is awaited on measures taken or envisaged to prevent new, similar violations.

The Deputies decided to resume consideration of these items at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual and general measures.

- 6 cases against Greece

43529/07 Nerattini, judgment of 18/12/2008, final on 18/03/2009
This case concerns a violation of the principle of presumption of the applicant’s innocence due to the reasoning used by the Samos Criminal Court in August 2007 to reject his request for release (violation of Article 6§2). The applicant had been arrested for receiving a package containing cannabis. The domestic court considered that the significant number of antiques found in the applicant’s home indicated a propensity to commit further offences related to antiques. The European Court found that this reasoning reflected the opinion that the applicant was guilty of misappropriation of antiques even though at that time he had been neither formally accused nor tried for such offences.
The case also concerns the lack of relevant and sufficient grounds to justify the applicant’s placement in pre-trial detention (violation of Article 5§3). The European Court considered that even if the suspicion that the applicant committed the offences he was charged with could initially justify his pre-trial detention, this ground was not sufficient to justify the detention for the whole period in question (August 2007- March 2008). The Court also considered that the risk of absconding put forward by the authorities could justify in principle the applicant’s placement in pre-trial detention, on the condition that it was based on precise facts, which was not so in this case. The Court also noted that the Samos Criminal Court did not examine the possibility of guaranteeing the applicant’s presence through the adoption of alternative measures. The Court finally regretted that it took six months before for the domestic court considered elements in favour of the applicant’s release on bail, event though they already existed from the start.
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. It rejected his request in respect of the pecuniary damage (§ 44). The applicant was released on bail in March 2008. Criminal proceedings against the applicant were pending when the European Court delivered its judgment.
Assessment: In these circumstances, no further individual measure seems necessary.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting of 2010, in the light of information to be provided on the general measures.

45769/06 Kokkinis, judgment of 06/11/2008, final on 06/02/2009
48775/06 Reveliotis, judgment of 04/12/2008, final on 04/03/2009
These cases concern breaches to the applicants’ right to the peaceful enjoyment of their possessions due to the manner in which the Audit Court had fixed the starting point for the payment of their pension rights (violations of Article 1 of Protocol No.1).
In 1998 and 1999 respectively, the applicants, retired civil servants, asked the Public Accounting Department to reassess of their pensions as from 1/08/1997. Ruling on appeal, the Audit Court upheld their claims in 2002. However, the court decided that the amounts of the re-evaluated pensions were due only from 1/01 1/07/1999 respectively. This conclusion was due to the interpretation made by the Audit Court of the provisions of Presidential Decree No. 166/2000, Article 60§1 of which provides the possibility to claim pension rights retroactively, for up to three years starting from the “decision concerning their pension rights”. In the present cases, the Audit Court considered that the three-year period of retroactivity should be counted from the publication of its own judgments, which constituted the decisions upholding the applicants’ pension claim.
The European Court noted that the date from which the applicants could receive payment of their pensions had depended exclusively on the time that the administrative authorities and courts had taken to give their decisions. The Court noted in particular that the application of such a criterion appeared vague and likely to lead to contradictory and unjustified results.
Individual measures: The European Court awarded the amounts claimed by the applicants which corresponded to the difference between the amounts they received between 1997 and 1999 and the amounts due to them following the reassessment of their pension, increased by 20% to cover inflation. These amounts were further increased by 6% per annum.
Assessment: consequently, no individual measure seems necessary.

General measures: The European Court noted in its judgments that the Audit Court had recently considered that the approach according to which the time-limit began from the publication of its judgment upholding the interested person’s claim was contrary to the Rule of Law, to several constitutional provisions and to Article 1 of Protocol No. 1 to the Convention (judgments Nos. 1102/2007 (plenary), 193/2007 (plenary) and 1316/2007). In particular, the Audit Court considered that when the pension rights are dismissed by the administration and then recognised in subsequent judicial proceedings, the starting-point for the time-limit should be the final act of the competent authorities which unlawfully had not recognised the claim (see §§18 and 37 of the Kokkinis judgment).
Assessment: no further general measure seems necessary.

The Deputies:
1. noted that no further measure seemed to be required for the execution of these judgments;
2. decided to resume consideration of these items with a view to examining the possibility of closing these cases, once the just satisfaction has been paid.

6789/06 Fakiridou and Schina, judgment of 14/11/2008, final on 14/02/2009
This case concerns the violation of the applicants’ right to the peaceful enjoyment of their possessions because of the refusal of the Greek authorities and courts to revoke the expropriation imposed on their plot of land since 1933 (violation of Article 1 of Protocol No. 1).
In 1933, by virtue of a decree amending the town’s development plan, a large part of the land in question was expropriated. In 1979 a decision designating the plots of land that had been expropriated and the proportional shares of the compensation due to the owners was adopted. The applicants applied to the administrative authorities and, having been unsuccessful, to the Greek courts, seeking to have the order for the expropriation of their land revoked. In 2005 the Supreme Administrative Court dismissed their application because in 1989 two owners of an adjacent plot of land, which had not been expropriated, applied to the Greek courts to be granted permission themselves to pay the compensation due to the applicants and thus enable the expropriation to be carried out. In August 2005, the Supreme Administrative Court accepted their demand to pay compensation to the applicants once the amount had been set. In November 2005, the applicants applied again before the administrative courts against to the authorities’ refusal to revoke the expropriation of their plot of land. These proceedings were still pending when the European Court delivered its judgment.
The European Court observed that the applicants’ land had been subject to an encumbrance since 1933, and that since 1979 the authorities had not taken any steps to carry out the expropriation and pay compensation to them. The only procedure aimed at compensating the applicants had been initiated by the owners of the adjacent land. In the Court’s view, the state’s obligation to respect and protect individuals’ property could not be dependent on the initiative of third parties. It therefore concluded that such interference with the applicants’ rights had upset, to their detriment, the fair balance that had to be struck between the protection of property and the demands of the general interest.
Individual measures: The European Court has not awarded any just satisfaction to the applicants since they stated they would be able to file a compensation claim before the administrative courts. On the other hand, they requested the revocation of the expropriation at issue. In this regard, considering that the nature of the violation found allows restitutio in integrum, the Court found that the revocation of the expropriation at issue would most likely put the applicants in the same situation as they would have been had there not been a failure to comply with the requirements of Article 1 Protocol No. 1.
Evaluation: Information is awaited of the measures taken or envisaged and on the outcome of the proceedings pending before the domestic courts.
General measures:
Information is awaited on measures taken or envisaged to avoid new, similar violations. Considering the nature of the violation found, the publication of the European Court’s judgment in Greek and its dissemination to courts (in particular to the Council of State and the Administrative Courts of Appeal) and the competent authorities seem to be necessary.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting of 2010, in the light of information to be provided on individual and general measures.

36970/06 Vamvakas, judgment of 16/10/2008, final on 16/01/2009
This case concerns the violation of the applicant's right of access to a court due to the excessive formalism of the Court of Cassation in 2006, in declaring inadmissible the applicant's appeal against a decision taken by the appeal court sentencing him to four years’ imprisonment for forgery (violation of Article 6§1).
The applicant, who was held in prison at the relevant time, lodged his appeal with the prison governor. He filled in a standard form and attached an additional document stating in greater detail the grounds for his appeal on points of law. The prison governor signed the official form but not the appended document. The Court of Cassation refused to take into account the document which was not signed by the governor and consequently rejected the appeal as inadmissible as insufficiently grounded.
The European Court noted in particular that the Court of Cassation had penalised the applicant for a formality for which he was not responsible and had thus infringed his right of access to a court.
Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. The applicant is entitled to have the proceedings reopened following the judgment of the European Court, in accordance with Article 525§1.5 of the Code of Criminal Procedure.
Assessment: in these circumstances, no further individual measure appears necessary.
General measures: This case presents similarities with that of Boulougouras, judgment of the 27/05/04. In that case the Greek authorities informed the Committee of Ministers that the Criminal Chamber of the Court of Cassation, in its judgment 677/2005 (15/03/2005), had promptly given direct effect to the judgment of the European Court. In its judgment, the Criminal Chamber stated that an appeal to the Court of Cassation was not to be declared inadmissible on the sole ground that it had not been countersigned by the court registrar. The Greek authorities have stressed that this new domestic case-law is an adequate guarantee for avoiding similar violations in the future.
Information is awaited on measures taken or planned to avoid other, similar violations. Given that the Court of Cassation’s judgment in the present case is posterior to the judgment referred to by the authorities in the Boulougouras case; information would be appreciated on the evolution of this case-law.

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 the general measures.

*42132/06 Paraponiaris, judgment of 25/09/2008, final on 06/04/2009
This case concerns the violation of the applicant’s right to respect for the presumption of innocence.
The applicant was prosecuted for smuggling petroleum products. The Indictment Division abandoned the criminal proceedings because they were time-barred, but fined him, in April 2006, about 54,086 euros because it had been “objectively established that he had committed the offence of smuggling”.
The European Court considered that the terms used by the Indictment Division made a distinction, which the Court deemed artificial, between a finding of guilt and a finding that an offence had been “objectively” established. The reasoning of the Indictment Division resembled a declaration of guilt and was therefore incompatible with the presumption of innocence (violation of Article 6§2).
The case also concerns a violation of the applicant’s right to a fair trial: the European Court considered that the Indictment Division had not given the applicant full guarantees in respect of the requirements of a fair trial and the rights of the defence. The Court noted in particular that the applicant had been fined following a hearing which had not been held in public and at which he had been neither present nor represented (violations of Articles 6§§1 and 3 c).
Individual measures: The application of Article 41 has been reserved in its entirety by the European Court. When the European Court delivered its judgment the applicant had not paid the fine imposed on him by the Indictment Division. All domestic proceedings have been closed.
Assessment: the need for adoption of individual measures will be assessed in the light of the judgment on application of Article 41.
General measures: As regards the violation of the principle of presumption of innocence, this case presents similarities to that of Diamantides (Section 4.2), in which the authorities sent out the judgment of the European Court to the Court of Cassation and to the Ministry of Justice.

Information is awaited on measures taken or envisaged to prevent other violations similar to those found in this case.

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 the information to be provided on the general measures and for the assessment of the individual measures, if appropriate.

- 1 case against Hungary

5529/05 Patyi, judgment of 07/10/2008, final on 07/01/2009
This case concerns the violation of the applicant’s right to freedom of assembly.
In 2004, the authorities on several occasions banned demonstrations notified by the applicant in compliance with the national law, citing traffic and security reasons. The applicant planned to organise peaceful demonstrations with twenty participants, whose only action would have been to stand silently in line on the pavement in front of the Prime Minister’s private residence in Budapest.
The European Court noted that it appeared unlikely that a limited number of demonstrators would have needed more space at the scene than the five-metre-wide pedestrian area, or that they would have significantly impeded the traffic, especially on Christmas Eve, when the town buses ceased to run soon after 4 p.m. (§42). The ban was thus neither relevant nor sufficient to meet any pressing social need nor it has been necessary in a democratic society (§44) (violation of Article 11).
Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage the applicant may have suffered (§53).
Assessment: In these circumstances no further measure appears necessary.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations. It appears at the outset that the publication of the European Court’s judgment and itswide dissemination would be useful.

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 general measures.

- 2 cases against Italy

50550/06 Scoppola, judgment of 10/06/2008, final on 26/01/2009, rectified on 07/04/2009
The case concerns degrading treatment suffered by the applicant, a life prisoner, due to the conditions of his of detention, which were not appropriate to his state of health (violation of Article 3).
In 2003 the applicant, who was confined to a wheelchair and suffered from several diseases, unsuccessfully asked to be transferred from the Regina Coeli Prison in Rome to another prison in Rome where he could benefit from more humane conditions of detention. In June 2006, the Rome court responsible for the execution of sentences, supported by medical evidence, granted the applicant detention at home, but because he did not have a home adapted to his needs, the decision was set aside. In December 2006, the competent bodies of the Ministry of Justice ordered the applicant’s transfer to Parma prison, which had appropriate facilities for disabled inmates. The transfer did not take place until September 2007.
The European Court considered that keeping the applicant in the Regina Coeli Prison, which the court responsible for the execution of sentences had deemed inappropriate to his health status, must inevitably have placed him in a situation that aroused sufficiently strong feelings of anxiety, inferiority and humiliation to amount to ”inhuman or degrading treatment” (§ 51).
Individual measures: The applicant is currently detained in Parma Prison. The European Court awarded him just satisfaction.
The European Court considered that it did not have sufficient information to enable it to give an opinion of the facilities in Parma Prison or, more generally, the conditions of the applicant’s detention in that prison (§51).
Information is awaited on the situation of the applicant, in particular as to whether the conditions of detention are appropriate to his state of health.

General measures: The European Court observed that being unable to care for the applicant at home and there being no adequate institution available to care for him, the state should have either transferred the him to a better-equipped prison to avoid the risk of inhuman treatment or deferred execution of a sentence that had become tantamount to treatment contrary to Article 3 of the Convention (§50).
Information is awaited on measures taken or envisaged to prevent future similar violations, in particular the publication of the European Court’s judgment and its broad dissemination to courts responsible for the execution of sentences.

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 and general measures.

*19537/03 Clemeno and others, judgment of 21/10/2008, final on 06/04/2009
This case concerns a violation of the applicants' right to respect for their family life due to the authorities' failure, between 1997 and 2002 first, to take the necessary measure to maintain contacts between a child and her natural family while she was in care and secondly, to their decision to put her up for adoption (violations of Article 8).
The European Court considered that measures to remove the child from the family and place her in care were justified and proportionate in view of the serious allegations of abuse against her father (§52). However, the Court observed that, after having been taken into care, the authorities had never made it possible for the child to meet any member of her natural family, in particular her mother, who had not faced any criminal charges, and her brother. Every link with the natural family was therefore totally and finally broken (§61).
Moreover, the reasons given by the domestic courts for the decision to put the child up for adoption were insufficient in relation to the child’s best interest, which required that a decision resulting in breaking family links should be ordered only in exceptional circumstances and that everything should be done to maintain personal relations and, where appropriate, at the right time, to “reconstitute” the family (§60).
Individual measures: The child born in 1988 having attained her majority in 2006, no individual measure is required. The European Court awarded just satisfaction in respect of non-pecuniary damage.
General measures:
1) Lack of contacts: this case presents similarities with the caseof Roda and Bonfatti (Application No. 10427/02, Section 3). Subsequent to the facts at the origin of this case, a new Law (No. 149/01, which entered into force on 27/042001) changed the provisions concerning the adoption and care of minors. Article 5§2 of Title II on care of minors provides that social services under instruction of the judge or according to the needs of the case, are required, inter alia, to ease relationships with the natural family and return within the family in the most appropriate ways.
• Taking into account that the facts in the present case took place partially after to the entry into force of the law mentioned above, information is awaited on any further possible measure the authorities have taken or envisage taking to prevent new, similar violations, as well as on the publication of the European Court's judgment and its dissemination to the tribunals for minors and the social services.
2) Declaration of adoptability: Law No. 149/01, mentioned above, also introduced new rules concerning the adoption of minors, including the “declaration of adoptability” procedure (Title III, Section II). It provided in particular greater involvement of parents during the procedure (Article 8§4), as well as clearer rules for the different steps of the procedure itself.
Information is awaited on any further measure the authorities have taken or envisage taking to prevent 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 information to be provided on general measures.

- 2 cases against Latvia

55707/00 Andrejeva, judgment of 18/02/2009 – Grand Chamber
This case concerns the Latvian authorities’ refusal to allow the applicant, who has resided permanently in Latvia since 1954, to benefit from state pension rights acquired before 1991 when working for state bodies having their headquarters outside Latvia (Kyiv and Moscow), on the grounds that she did not have Latvian nationality (violation of Article 14 of the Convention in conjunction with Article 1 of protocol No. 1).
The applicant has no nationality and since April 1995 has been a “permanently resident non-citizen” of Latvia. She worked in Latvia from 1973 to 1981 in a state body depending from the Ministry of the Chemical Industry of the USSR, with headquarters in Kyiv. Until being made redundant in September 1993, she continued to work in another branch of the same body which had its headquarters in Moscow.
When the applicant retired in August 1997, the Social Insurance Directorate refused to take into consideration the period during which the applicant worked for USSR state bodies in the calculation of her retirement pension. The Directorate found that according to Article 1 of the Law on State Pensions, for foreigners or stateless persons residing in Latvia, only periods of work actually performed in Latvia could be taken into consideration for the purpose of calculating the pension at issue.
The European Court found that nationality was the one and only criterion underlying the difference of treatment and that no objective, reasonable justification had been presented, not least considering that the applicant has no nationality.
The case also concerns the violation of the applicant’s right to a fair trial in that she could not exercise her entitlement to take part (provided in Article 471 of the Law on Civil Procedure) in the public hearing of the Senate of the Supreme Court as it had been decided to bring forward the hearing date. (violation of Article 6§1).
Individual measures: The European Court awarded the applicant just satisfaction in respect of both pecuniary and non-pecuniary damage.
Information is awaited on measures to redress the applicant’s situation, in particular the recalculation of her retirement pension.
General measures:
Information is awaited on measures taken or envisaged to prevent 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 information to be provided on individual and general measures.

70930/01 Blumberga, judgment of 14/10/2008, final on 14/01/2009
This case concerns a violation of the applicant’s right of access to court in civil proceedings due to the rejection of her request to be exempted from court fees, despite her modest financial circumstances.
In June 2001 the applicant filed a civil claim for damages against the state police in connection with the failure of the authorities to fulfill their obligation to protect her property while she was in detention. Some of the applicant’s property stored in her house was stolen while she was held in police custody. The applicant also requested exemption from paying court fees, attaching a copy of her pensioner’s certificate indicating the amount of her retirement pension.
In August 2001, the Rīga Regional Court declined to examine the merits of the claim, on the ground that the applicant did not submit sufficient evidence as regards to her financial situation and the basis of her claim.
However, the European Court considered that the documents submitted by the applicant to the domestic courts provided a reasonable and sufficient basis for her claim and observed that the domestic courts did not indicate to the applicant what additional documents were necessary to prove her financial situation and the circumstances on which her claim was based (violation of article 6§1).
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Information is awaited on possibilities of reopening the case, if the applicant so wishes.
General measures:

Information is awaited on measures taken or envisaged to prevent new, similar violations as well as on the publication of the judgment of the European Court and its dissemination to competent authorities.

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 and general measures.

- 7 cases against Lithuania

871/02 Savenkovas, judgment of 18/11/2008, final on 18/02/2009
This case concerns the poor conditions in which the applicant was held on remand between 2001 and 2003 in Lukiškės Remand Prison.
Assisted by the reports of the CPT (CPT/Inf(2001)22 and CPT/Inf(2006)9), the European Court found that the severely overcrowded and unsanitary conditions under which the applicant was detained amounted to degrading treatment. The Court took particular account of their detrimental effect on the applicant’s health and well-being (violation of Article 3).
The case also concerns unjustified interference in the applicant’s right to respect for his correspondence. The Court considered that there was systematic censorship of prisoners’ correspondence at the material time and that the government had not presented sufficient reasons to show why such censorship of the applicant's correspondence was “necessary in a democratic society” (Article 8).
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Assessment: No further individual measure appears to be necessary, as the applicant was released on 30/07/2003.
General measures:
Information provided by the Lithuanian authorities (letter of 12/04/2009): An explanatory note concerning the European Court’s judgment was placed on the official internet site of the Ministry of Justice.
Information is awaited on measures taken or envisaged to prevent 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 information to be provided on general measures.

10425/03 Gulijev, judgment of 16/12/2008, final on 16/03/2009
This case concerns the unjustified interference with the applicant’s right to respect for his private and family life due to the rejection of his request for renewal of his temporary residence permit in 2002 and his subsequent expulsion.
The applicant, a national of Azerbaijan who was residing at the material time in Lithuania with his wife and two children (all Lithuanian citizens), was denied the renewal of his residence permit on account of a report drafted by the State Security Department and classified as “secret”. This report indicated that the applicant posed a threat to national security and public order.
The European Court observed that the “secret” report of the State Security Department, to which the applicant had no access, was the sole ground for not granting him a temporary residence permit. However, no objective element had been presented to the Court to demonstrate that the authorities had had good reason to suspect that the applicant was a threat to national security.
The Court concluded that the deportation of the applicant and his prohibition from re-entering Lithuania, where his two children and wife live, was disproportionate and could not be regarded as “necessary in a democratic society” (violation of Article 8).
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Information is awaited as to whether the applicant may now be granted a renewal of his temporary residence permit.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual and general measures.

14414/03 Jucius and Juciuvienė, judgment of 25/11/2008, final on 25/02/2009
This case concerns the violation of the applicants’ right to respect for their family life in that the domestic courts failed in their duty to deal diligently with the applicants’ request to grant them custody of their two orphaned nieces.
In August 2002, the Mažeikiai District Court appointed the orphaned girls’ paternal grandparents as their permanent custodians. This judgment was upheld by the Šiauliai Regional Court, which confirmed the first-instance court’s decision in a written procedure, without holding an oral hearing.
Following the refusal of the elder sister to leave the applicants’ home in March 2003, the Telšiai District Court reopened the civil proceedings and, in October 2004, granted permanent custody of the elder sister to the applicants, and that of the younger sister to the grandparents. The district court observed that the girls have been living separately since March 2003 and were used to their current environments. While making its decision, the court considered the elder sister’s wish to stay with the applicants and the younger’s wish to stay with her grandparents. When upholding this decision in June 2005, the Supreme Court noted that the proper conditions should be created so that the girls could communicate with each other.
The European Court observed that the procedural requirements implicit in Article 8 were not satisfied with regard to the initial decision-making process whereby the custody of both children were granted to their grandparents. The Court considered that the absence of a hearing on appeal denied the applicants and the girls the opportunity to be heard and fully participate in the proceedings in order to protect the best interests of the children.
Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. The elder sister, 14 years old, has been living with the applicants since 1999 and the younger sister, 10 years old, with her grandparents since March 2003. It appears that the Court’s finding in this case relates to the fact that the initial decision-making process did not satisfy the requirements of Article 8 of the Convention. The Court found no fault with the second set of proceedings granting custody of the elder child granted to the applicants and the younger to the grandparents. However, the European Court noted the position of the Supreme Court that proper conditions should be created so that the two girls should communicate with each other and noted that this conferred an obligation on the state (§ 32).
Information is therefore awaited as to whether the proper conditions have created so that the siblings may communicate with each other.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations. At the outset, publication and dissemination of the Court’s judgment appear necessary.

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 and general measures.

36919/02 Armonienė, judgment of 25/11/2008, final on 25/02/2009
23373/03 Biriuk, judgment of 25/11/2008, final on 25/02/2009
These cases concern national court’s failure in their obligation to secure respect for the applicants’ private lives as result of the derisory sum awarded to them in respect of non-pecuniary damages in proceedings which they had brought.
In the Armonienė case, in January 2001, a daily newspaper published a front-page article about the dangers of AIDS, divulging among other things information on the state of health of the applicant’s husband to the effect that he was HIV-positive and that he was the father of two children by another woman who was also suffering from AIDS.
In the Biriuk case, the same article contained information about her state of health, as well as references to her sexual life.
The applicants instituted proceedings before the national courts, suing the newspaper for a breach of their right to privacy. The courts ruled in their favour and awarded them the maximum sum set by Article 54 § 1 of the Law on the Provision of Information to the Public, which is 10,000 litai (about 2, 896 euros).
The European Court found that in cases of such flagrant abuse of press freedom, the severe limitations imposed by law on judges’ discretion in redressing non-pecuniary damage resulted in the applicants’ being deprived of the degree of protection for their private life which they had a right to expect (violation of Article 8).
Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.
Assessment: No further individual measure appears to be necessary.

General measures: The new Civil Code which came into force on 1/07/2001 removed the ceiling on judicial awards of compensation contained in Article 54§1 of the Law on the Provisions of Information to the Public.
Information is awaited on the publication of the European Court’s judgment and its dissemination to competent authorities.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on general measures, namely publication and dissemination of the European Court's judgment.

72596/01 Balsytė-Lideikienė, judgment of 04/11/2008, final on 04/02/2009
This case concerns a violation of applicant’s right to a fair trial in that her case was examined in the absence of certain experts who were not summonsed to appear at the administrative proceedings even though their conclusions were essential to the determination of the merits of her case.
The European Court noted that when finding the applicant guilty, the national courts extensively quoted the experts’ conclusions and that these conclusions had a key place in the proceedings against the applicant. The fact that the applicant had had no opportunity to examine the experts or to have them examined amounted to a violation of her right to a fair trial (violation of Article 6§1).
Individual measures: It should be noted that despite the applicant’s complaint that the sentence imposed in the proceedings at issue constituted an interference with her freedom of expression, the European Court found no violation of Article 10 of the Convention. The European Court also awarded the applicant just satisfaction in respect of non-pecuniary damage.
Assessment: No further individual measure appears to be necessary.
General measures:
Information is awaited on measures taken or envisaged in order to avoid new, similar violations and on the publication of the European Court’s judgment and its dissemination to competent authorities.

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 general measures.

37259/04 Švenčionienė, judgment of 25/11/2008, final on 25/02/2009
This case concerns a violation of applicant’s right to a fair hearing as she had had no possibility to attend the appeal hearing in civil proceedings for divorce and the division of matrimonial property.
In February 2004 the Kaunas Regional Court heard an appeal in the absence of the applicant and her lawyer, because the notice to the applicant had been sent to the wrong address. The applicant’s appeal to the Supreme Court was rejected in April 2004.
The European Court considered that even though the national legislation in itself is not incompatible with the fair-hearing guarantees of Article 6§1, in this case the applicant was deprived of an opportunity to participate in the proceedings actively because she was not duly informed of the appeal hearing (violation of Article 6§1).
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Information is awaited as to whether it is possible to reopen the proceedings if the applicant so wishes.
General measures:
Information is awaited on the publication of the European Court’s judgment and its dissemination to all competent authorities.

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 and general measures.

- 1 case against Luxembourg

2196/05 Thilgen, judgment of 10/03/2009 – Friendly settlement
This case concerns the applicant's complaints that the investigation into the causes of his sister’s death in a hospital was ineffective (complaint lodged under Article 2) and also that the proceedings took too long and did not guarantee his right of access to a court (complaint lodged under Article 6§1).

The Deputies:
1. noted that the friendly settlement did not contain particular undertakings other than the payment of the agreed sums;
2. decided to resume consideration of this item in the light of a draft resolution to be prepared by the Secretariat once the just satisfaction has been paid.

- 2 cases against Moldova

39806/05 Paladi, judgment of 10/03/2009 – Grand Chamber
This case concerns various violations related to the applicant’s detention on remand.
First of all, it concerns inhuman and degrading treatment due to inappropriate medical treatment received by the applicant in detention, considering the seriousness of his health condition (violation of Article 3). The European Court noted that the applicant suffered from a number of serious illnesses (he had been inter alia diagnosed with insulin-dependent diabetes, chronic active hepatitis, third-degree arterial hypertension, second-degree congestive heart failure, endocrinal renal failure, etc.) and that it was clear that he was in need of constant medical supervision. In view of the applicant’s state of health and the overall level of medical assistance he received in detention, the European Court found that, the treatment to which he was subjected was contrary to the Article 3 (§72).
Secondly, the case concerns the unlawful detention of the applicant between 22/10/2004 and 15/12/2005 in the absence of a judicial decision to that effect (violation of Article 5§1). “Relying on well-established case-law concerning the domestic authorities’ practice of detaining an accused pending trial without at the same time extending the court order providing a legal basis for such detention”, the European Court found violation of Article 5 §1 (§73).
Finally the case concerns a breach of the applicant’s right to individual petition as a result of the Moldovan authorities’ failure to comply with the interim measure indicated under Rule 39 of the Rules of the Court, in which the Court requested the authorities to refrain from transferring the applicant from the Republican Neurology Centre of the Ministry of Health (violation of Article 34). The European Court noted that the fact that, ultimately, the risk to the applicant’s health did not materialise, does not alter the fact that the negligence and the lack of action of the Moldovan authorities (on the part of both the Governmental Agent who was responsible for transmitting the interim measure immediately to the relevant judicial authorities and the judicial authorities responsible for deciding to prevent the applicant’s transfer) were incompatible with their obligations under Article 34.
Individual measures: On 15/12/2005 the applicant’s detention pending trial was replaced by an obligation not to leave his city of residence. The European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damage suffered by the applicant.
Information is awaited as to whether the applicant can in his present situation get adequate medical care.
General measures:
1) Violation of Article 3: see group Becciev (Section 4.2)
2) Violation of Article 5§1: see group Sarban (Section 4.2)
3) Violation of Article 34:
Information is awaited on measures envisaged or taken to prevent new, similar violations.Information is also awaited on the publication on the full text of the European Court’s judgment and its dissemination to all courts and prosecutors, possibly with a circular letter from the Supreme Court of Justice, drawing their particular attention to their obligations under article 3 and 34 of the Convention.

The Deputies:
1. decided to resume consideration of this item at the latest at their 1072nd (DH) meeting (1-3 and 4 (morning) December 2009) (DH) in the light of the information to be provided on individual and general measures;
2. recalled that certain issues related to general measures are also examined in the Becciev and Sarban groups of cases.

17332/03 Levinta, judgment of 16/12/2008, final on 16/03/2009
This case concerns violations of Article 3 on account of:
- torture inflicted on the applicants, two brothers, on 3 and 4/11/2000, while they were in police custody at the Chisinau police inspectorate,
- the failure by the authorities to transfer the applicants to a safe place with a view to preventing new abuses against them by the police officers in charge of the investigation,
- the lack of sufficient medical assistance during the applicants’ detention,
- the failure by the authorities to carry out an effective investigation on the allegations of ill-treatment, immediately after the events.
The European Court found it particularly disturbing that, during the first days of the applicants’ detention and especially after the ill-treatment inflicted on them, the lawyers were prevented from having access to the applicants. In this respect, the European Court found it striking that the complaints submitted by the lawyers to the prosecutor and the Chisinau regional court were dismissed on the sole ground that the applicants did not complain themselves. This especially as the ill-treatment allegations were credible. In this context, the Court found that the failure to transfer the applicants to a safe place after the ill-treatment to which they had been subjected, had been a continuation of ill-treatment.
As regards the failure by the authorities to carry out an effective investigation immediately after the events, the European Court considered that the domestic courts’ analysis made approximately two years after the events on the basis of the documents in the case-file which contained no evidence of ill-treatment, could in no way remedy this failure.
Recalling states’ obligation to protect the physical well-being of detainees, the European Court found that in this case security concerns had been given overriding precedence. Thus, despite the medical emergency team’s recommendation of in-patient treatment for the first applicant, the authorities had chosen to leave him at the police inspectorate, where he could not benefit of sufficient medical assistance. Moreover, the second applicant had not even been examined by a doctor although he claimed that he had lost the use of his arm as a result of ill-treatment.
Finally, having regard to its findings on the applicants’ ill-treatment on 3 and 4/11/2000, to the confessions they signed on 7 and 8/11/2000 in the absence of their lawyers, and to the total lack of reaction by the authorities to their lawyers’ complaints, the European Court considered that “statements obtained in such circumstances fall within the category of statements which should never be admissible in criminal proceedings since use of such evidence would make such proceedings unfair as a whole, regardless of whether the courts also relied on other evidence” (§104) (violation of Article 6§1).
Individual measures: Both applicants were convicted and are currently serving their sentences. The European Court awarded just satisfaction in respect of the non-pecuniary damage suffered by the applicants.
1) Violations of Article 6: The European Court recalled that “where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.”
Information is awaited on action taken by the Moldovan authorities with a view to ensuring reopening of the cases.
2) Violation of Article 3:
Information is awaited on measures envisaged or taken by the authorities with a view to ensuring an effective investigation into the ill-treatment inflicted on 3 and 4/11/2000.
General Measures:
1) Violations of Article 3:
- Lack of sufficient medical treatment: see Becciev group (9190/03, Section 4.2).
Information is also awaited on existing legislative or regulatory framework concerning medical assistance in detention.
- Lack of an effective investigation: see Corsacov group (18944/02, Section 4.2).

2) Violations of Article 6:
Information is awaited on the regulatory framework concerning the admissibility of evidence obtained in violation of the Convention’s requirements. Information is also awaited on the publication of the full text of the judgment and its dissemination to all courts, prosecutors and to police services, possibly with a circular letter from the Supreme Court of Justice and the Ministry of the Interior, drawing their particular attention to their obligations under Articles 3 and 6§1 of the Convention.

The Deputies:
1. 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 the information to be provided on individual and general measures;
2. recalled that the issues related to general measures are also examined in the Becciev and Corsacov groups of cases.

- 1 case against Norway

21132/05 Tv Vest As and Rogaland Pensjonistparti, judgment of 11/12/2008, final on 11/03/2009
This case concerns the violation of the freedom of expression of the applicants, TV Vest AS Ltd. – a television broadcasting company – and the Rogaland Pensioners Party (Rogaland Pensjionistparti), on account of a fine imposed by the State Media Authority for breaching legislation prohibiting television broadcasting of political advertisements (violation of Article 10).
The decision of the State Media Authority concerned advertisements aired in 2003 by TV Vest and was based on the prohibition on television broadcasting of political advertising under section 3-1(3) of the Broadcasting Act 1992. The prohibition is permanent and absolute and applies only to television, political advertising in other media being permitted.
The European Court noted that the rationale for the statutory prohibition of television broadcasting of political advertising had been, as stated by the Supreme Court in rejecting the appeal of one of the applicants, the assumption that allowing the use of such a powerful and pervasive form and medium of expression had been likely to reduce the quality of political debate and to give richer parties and groups more scope for opportunities for marketing their opinions.
However, the European Court found that “paid advertising on television had been the sole means for the Pensioners Party to get its message across to the public through that type of medium” (§73). By being denied this possibility under the law, the Pensioners Party had been put at a disadvantage in comparison with the major parties, which had obtained broader editorial broadcasting coverage. Moreover, the content of the advertising was not as such as to lower the level of public debate. Therefore the Court considered that “the fact that the audio-visual media has a more effective and powerful effect than other media could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertising at issue” (§76).
The Court accordingly concluded that there had not been a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition of political advertising and the means deployed to achieve that aim. The restriction could not therefore be regarded as having been necessary in a democratic society (§ 78).
Individual measures: Section 407(7) of the Code of Civil Procedure permits the re-opening of internal proceedings following a judgment of the European Court finding a violation.
Information is awaited as to whether the applicants have made a request for re-opening of the proceedings in question.
General measures: Section 3-1(3) of the Broadcasting Act 1992 reads: ”Broadcasters cannot transmit advertisements for life philosophy or political opinion through television. This applies also to teletext”.
The European Court acknowledged that the absence of a European consensus with regard to the extent of the regulation of television broadcasting of political advertising could be viewed as emanating from the different perceptions regarding what is necessary for the proper functioning of the “democratic” system in the respective states. However, on the basis of its assessment on the circumstances of the case (see above), it concluded that “the view expounded by the respondent Government, supported by the third party intervening Governments, that there was no viable alternative to a blanket ban must [therefore] be rejected” (§ 77).
Information is awaited on measures taken or envisaged to comply with the European Court’s judgment.

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 and general measures.

- 4 cases against Poland

77766/01 Dzieciak, judgment of 09/12/2008, final on 09/03/2009
This case concerns the authorities’ failure to protect the applicant’s life while in custody between September 1997 and October 2001 and the lack of effective investigation into his death.
The applicant, who suffered from heart disease and had had two heart attacks, was remanded in custody on suspicion of drug trafficking on 17/09/1997. Despite his numerous requests for release on grounds of ill-health, the domestic courts repeatedly extended his detention, relying on the reasonable suspicion against him and the complexity of the investigation. It was only on 22/10/2001, during a trial at which the applicant fainted, that the court ordered his release for 26/10/2001, knowing that he was to undergo a heart bypass operation that day. On 25/10/2001 the applicant died; the post-mortem examination concluded that he had died of acute coronary insufficiency.
The European Court noted that despite the medical panel’s recommendations of 1998 and 1999 that the applicant should be kept in a detention centre with a hospital wing, between November 1999 and March 2000, he was kept in a detention centre in Łódź with no hospital wing. Consequently, his health deteriorated gradually. Even though in 2001 doctors decided that he should have a heart bypass operation, the authorities did not give a satisfactory explanation as to why he was not transferred to the Institute of Cardiology on the first two dates scheduled for that purpose. It was particularly striking that the second date was communicated to him too late, because of prosecutor’s censorship. The European Court also noted that the medical panel’s recommendation of 01/10/2001 on the applicant’s release was notified to the trial court 22 days later and the applicant had no access to medical care when he attended hearings in October 2001. Furthermore the grounds given by the domestic authorities to extend his detention could not justify the total period spent on remand which exceeded four years. Thus the European Court concluded that the lack of quality and promptness of the medical care provided to the applicant during his four years’ pre-trial detention put his health and life in danger (substantive violation of Article 2).
The European Court also criticised the fact that the investigation into the circumstances of the applicant’s death lasted more than two years, from December 2001 until the prosecutor’s decision to discontinue it on 28/08/2003, upheld by the district court on 19/01/2004. It concluded that the authorities had failed to carry out a thorough and effective investigation into the allegation that the applicant’s death had been caused by ineffective medical care during his detention (procedural violation of Article 2).
Individual measures: The European Court awarded the applicant’s widow just satisfaction in respect non-pecuniary damage.
The European Court noted the incomplete and inadequate character of the investigation insofar as it was not capable of establishing the circumstances directly preceding the applicant’s death. The prosecutor failed to establish whether the applicant had been taken to court on the morning of 22/10/2001, what exactly had happened in the court building, why the ambulance had brought him back to the detention centre; what had happened before the applicant had been taken unconscious from his cell at 3.45 p.m. (§ 107) and what was the real date of the applicant’s death (§ 108). Nor had it considered the doubts expressed by experts about the postponement of surgery on three occasions (§ 110).
Information is awaited on measures envisaged to open a new investigation in this case.
General measures:
1) Substantive violation of Article 2: The European Court concluded that in particular the lack of co-operation and co-ordination between the various state authorities, the failure to transport the applicant to hospital for two scheduled operations, the lack of adequate and prompt information to the trial court on the applicant's state of health, the failure to secure him access to doctors during the final days of his life and the failure to take into account his health in the automatic extensions of his detention amounted to inadequate medical treatment and constituted a violation of the state's obligation to protect the lives of persons in custody (§ 101).
Information is awaited on measures taken or envisaged to prevent new, similar violations, and in particular the publication of the European Court’s judgment and its dissemination to competent authorities (in particular prison authorities, prosecutors, criminal courts).
2) Procedural violation of Article 2: This violation resulted from the protracted length of the investigation and the lack of critical assessment by prosecutor and the district court of evidence obtained in the case.

Information is awaited on measures taken or envisaged to prevent 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 information to be provided on individual and general measures.

22695/03 Demski, judgment of 04/11/2008, final on 04/02/2009
This case concerns the unfairness of criminal proceedings brought against the applicant in that he could not question or have questioned the sole prosecution witness (violation of Article 6§1 in conjunction with Article 6§3(d)).
In 2001 the applicant was convicted to 4 years’ imprisonment for rape in proceedings in which the statements of the victim, who was the only direct witness, were made at the pre-trial stage. During the trial the applicant had no possibility to put questions to her or to confront her with other evidence.
The European Court concluded that the applicant’s conviction was based mainly on depositions of a witness whom he had had no opportunity to examine or to have examined either during the investigation or at the trial and in consequence his rights of defence had been restricted to an extent which was incompatible with the requirements of Article 6.
Individual measures: Under Article 540§3 of the Code of Criminal Procedure, the applicant may apply to have the criminal proceedings reopened invoking the finding of a violation by the European Court. Having regard to this possibility, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.
Assessment: in these circumstances, no other individual measure appears necessary.
General measures: The European court noted that the first-instance court had not made every possible effort to summons the victim to testify at the trial although her address was known. It stated furthermore that if it had been established that the victim was not in a position to take part in the trial, arrangements could have been made so that she could testify without suffering the ordeal of cross-examination whilst at the same time respecting the rights of the defence (§44).
Information is expected on the publication of the European Court's judgment and its dissemination to relevant authorities (criminal courts and the Supreme Court) as well as on other measures envisaged or taken to prevent 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 information to be provided on general measures.

74168/01 Wilkowicz, judgment of 04/11/2008, final on 04/02/2009
This case concerns the failure to enforce domestic decisions and judgments for more than seven years.
The applicant had been entitled to a military pension as from 01/05/1993 by virtue of a decision of 28/08/1995 by the Social Authority but the Military Pensions Office did not pay the sums due as it considered this decision to be unlawful. The applicant consequently brought an action before the regional court. During these proceedings the Social Authority summonsed him to undergo an additional medical examination and, as he failed to comply with the summons, payment of a part of his pension was stayed as from 01/05/1996.
By judgment of 4/03/1999, the regional court allowed the applicant’s action and ordered the Military Pensions Office to pay the amount of pension due for the period between 01/05/1993 to 01/05/1996. Although this judgment was upheld at second instance in 2000 and then subsequently rendered enforceable, the Office failed to make payments until the Supreme Court dismissed its appeal on points of law in 2002.
The European Court noted that the applicant had had enforceable claims since the 1995 decision and that the pension was paid to him only after seven years, despite the enforceable second-instance judgment of 2000 (violation of Article 6§1 and Article 1 of Protocol No. 1).
Individual measures: In December 2002 the Military Pensions Office implemented the domestic court’s judgment and paid the applicant the amounts in arrears together with statutory interest.
Before the European Court, the applicant claimed compensation corresponding to the part of his pension which had not been paid to him after the Social Authority stayed payments in 1996 on account of his failure to undergo an additional medical examination.
The European Court rejected the applicant’s claims for just satisfaction for pecuniary damage, as it did not discern any causal link between the violation found and the damage alleged. However, it granted him just satisfaction in respect non-pecuniary damage.
Information is awaited as to whether further measures are necessary.

General measures: The violations resulted from the Military Pensions Office’s refusal to pay the applicant’s pension.
Information is awaited on the publication of the European Court’s judgment and its dissemination to the Military Pensions’ Office as well as on other possible measures to prevent 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 information to be provided on individual and general measures.

19206/03 Bruczyński, judgment of 04/11/2008, final on 04/02/2009
This case concerns the excessive length of detention of the applicant on remand between 2000 and 2004, given that the grounds relied upon by the domestic courts in support of the detention could not be deemed, as required by the case-law of the European Court, “relevant and sufficient” (violation of Article 5§3).
Moreover, the European Court found that the applicant did not have at his disposal an enforceable right to compensation for his detention on remand, which it had found to be in violation of Article 5§3 (violation of Article 5§5).
Individual measures: The applicant was released in 2004. The European Court awarded him just satisfaction in respect of non-pecuniary damage occasioned by the unreasonable length of his pre-trial detention.
Evaluation: no other measure appears to be necessary.
General measures:
1) Violation of Article 5§3: This case presents similarities to the Trzaska group (Section 4.2).
2) Violation of Article 5§5: The European Court noted, first, that the applicant could not avail himself of the remedy provided in Article 552§4 of the Code of Criminal Procedure since reliance on that provision pre-supposes that the criminal proceedings giving rise to remand have been terminated and the applicant’s case was still pending before the Supreme Court when it delivered its judgment.
Secondly, the applicant could not use the relevant provisions of the Civil Code on the State’s liability for tort, as the applicant’s detention ended before the entry into force of these provisions in September 2004.
Information is awaited on measures taken or envisaged to prevent 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 information to be provided on general measures.

- 1 case against Portugal

6830/05 Pijevschi, judgment of 13/11/2008, final on 13/02/2009
This case concerns the breach of the applicant’s right of access to a court of appeal for a review of the correctness of his conviction, due to the appeal court’s particularly strict interpretation of a procedural rule (violation of Article 6§1).
In 2005, the Évora Court of Appeal declared the appeal inadmissible as being out of time as a result of the different interpretation of the procedural rules on time-limits for filing submissions, whereas the applicant had followed the time-limit the Court of First Instance had fixed.
The European Court found that the applicant could not be accused of having failed to act with the necessary care and diligence or of having committed an error for which he was to blame, especially as he had followed the instructions given by the Court of First Instance. The Court considered that the appellate court’s particularly strict interpretation of procedural rules, conflicting with the interpretation given by the Court of First Instance, was incompatible with the principle of legal certainty and had deprived the applicant of the right of access to the Court of Appeal (§ 41-42).
Individual measures: The applicant was sentenced in 2004 to six years and nine months’ imprisonment and excluded from the national territory for 15 years. He was released on parole in February 2006 and then expelled on 3 March 2006.
Act No. 48/2007 amending the Code of Criminal Procedure permits the re-examination of domestic judgments having the status of res judicata, following a judgment of the European Court finding a violation (Article 449). The government indicates that, under Article 450, the public prosecutor, as well as others including the person convicted, is entitled to ask for re-examination without any time-limit.
Assessment: under these circumstances, no further individual measure seems necessary.

General measures: Article 411 of the Code of Criminal Procedure provided at the material time that appeals against first-instance courts had to be filed within fifteen days as from the notification of the sentence. However, in cases where the transcript of the hearing was necessary, certain courts provided a supplementary delay of ten days as from the date when the transcript was put at the disposal of the applicant. Following discrepancies in the case-law, in its judgment No. 44/2004 the Constitutional Court decided, in a case similar to that at issue, that the interpretation according to which Article 411 of the Code of Criminal Procedure prevented the admissibility of an appeal submitted within the time-limit previously fixed by the Court of First Instance, would infringe the right to defence as sanctioned in Article 32 of the Constitution. The Supreme Court has also already annulled a decision similar to the judgment of the Évora Court of Appeal at issue, considering that it breached the fairness of a trial.
The European Court made reference to the judgment of the Constitutional Court mentioned above (§43).
Information is awaited on the publication of the European Court’s judgment and its dissemination to the competent authorities, in particular first-instance courts and courts of appeal. Information on any other measure envisaged by authorities will be appreciated.

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 general measures.

- 9 cases against Romania

*78060/01 Petrina, judgment of 14/10/2008, final on 06/04/2009
This case concerns the failure by the domestic courts to protect the reputation of the applicant, a politician, in defamation proceedings following allegations in a satirical magazine that he had collaborated with the former communist secret police (violation of Article 8).
By final decisions of July 2000, a domestic court rejected the applicant’s criminal complaints concerning insult and defamation lodged against two journalists who had asserted that he had been collaborator of the former communist secret police, the Securitate. Thus, invoking the European Court’s case-law on the matter and stressing the importance of the direct application of the Convention in domestic law, the court stated that the journalists’ affirmations were value-judgments which resulted from the freedom of opinion and from the right to communicate ideas. The court added that the journalists were pamphleteers and that the consequences of this type of publishing had positive effect on society.
The European Court considered that, even if the journal in which the articles were published had a satirical character, these articles offended the applicant, in absence of any indication concerning his membership of the Securitate. It also added that the articles did not contain any ironical or humoristic element, that they misrepresented the reality and that, even if the affirmations could be considered as value-judgments, they lacked any factual basis (§§44, 48 and 50 of the judgment).
Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Information is expected on possible measures to remedy any negative consequences of the violation found by the European Court with respect to the applicant.
General measures:
Information is expected on the authorities’ assessment as to whether the violation found by the European Court in this case is of an isolated nature and on possible measures taken or envisaged to avoid new, similar violations. In any event, publication of the European Court's judgment and its dissemination among relevant courts are expected, to raise their awareness of the Convention's requirements as they result from this case.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of information to be provided on individual and general measures.

16382/03 Bota, judgment of 4/11/2008, final on 4/02/2009
4234/04 Sergiu Popescu, judgment of 16/12/2008, final on 16/03/2009
These cases concern the unfairness of criminal proceedings resulting from the annulment of final judgments by the Supreme Court, respectively on 21/01/2003 and on 3/07/2003, following applications for nullity lodged by the Procurator General (violation of Article 6§1).
In the Bota case, by a final judgment of 25/05/2000 the applicant was acquitted of several charges. Following the annulment of this decision, he was sentenced to two years’ imprisonment, suspended.
In the Sergiu Popescu case, by a final judgment of 28/05/2002 the applicant was acquitted of making a false statement in his capacity as an expert in course of certain civil proceedings. Following the annulment of this judgment, the applicant was sentenced to a year's imprisonment, suspended.
The Bota case also concerns the annulment of a final judgment in civil proceedings following an application for nullity lodged by the Procurator General (violations of Article 6§1 and Article 1 of Protocol No. 1).
Individual measures:
1) Bota: The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage.
2) Sergiu Popescu: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage suffered. It further observed that following the Supreme Court's decision of 3/07/2003, which annulled his acquittal, the applicant had not been able to continue his activities as an expert. The European Court therefore considered that insofar as the applicant continues to suffer professional consequences resulting from the judgment at issue, the authorities should take the necessary measures to remedy this situation.
Information is expected on the current situation of the applicants and possible measures taken or envisaged to remedy the consequences of their convictions.
General measures:
1) Annulment of judgments in criminal proceedings: The European Court noted that at the material time, final judicial decisions could be revised following an application for nullity lodged by the Prosecutor General. However, it further noted that the provisions of the Code of Criminal Procedure related to the application of nullity had been repealed by Law No. 576/2004, published in the Official Journal of 20/12/2004.
Assessment: No further measure appears necessary.
2) Annulment of a judgment in civil proceedings: The Bota case presents similarities to that of Brumărescu (Resolution CM/ResDH(2007)90).

The Deputies decided to resume consideration of these items at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures.

4351/02 Amuraritei, judgment of 23/09/2008, final on 23/12/2008
The case concerns the infringement of the principle of legal certainty and consequently of the applicant's right to a fair trial due to the failure to take account of a final judgment of November 1991 resolving an inheritance issue, through a subsequent claim concerning a piece of land allocated to the applicant (violation of Article 6§1).
In 1999 the domestic courts admitted an action initiated by one of the parties to the earlier proceedings, who claimed that the plot of land at issue was not a part of the inheritance assets, and adopted a decision contrary to the final decision adopted in the inheritance proceedings.
The case also concerns a violation of the applicants' right to enjoyment of her possessions due to admission of the action against her which resulted in lost of the property right recognised in earlier proceedings (violation of Article 1 of Protocol No. 1).
Individual measures: The European Court awarded the applicant just satisfaction covering all heads of damage, taking into account the prices in the local property market.
Assessment: No further measure appears necessary.
General measures:
Information is expected on measures taken or envisaged to avoid new, similar violations.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting of 2010, in the light of further information to be provided on general measures.

*42790/02 Deak, judgment of 04/11/2008, final on 06/04/2009
The case concerns the infringement of the applicant’s right of access to a court due to the incorrect application of the law by domestic courts (violation of Article 6§1).
By a final judgment rendered in May 2002, a domestic court rejected as inadmissible the applicant’s action, by which she contested a decision of an administrative commission concerning the calculation of her pension rights, stating that this administrative decision could not be contested before the courts.
The European Court considered that, although the legislation regarding contestation of administrative decisions concerning pension rights is not in question as such, its application by the domestic courts led to a violation of the applicant’s right of access to a court (§31 of the judgment).
Individual measures: The Court awarded the applicant just satisfaction for non-pecuniary damage. She may request the reopening of the proceedings under Article 322 (9) of the Code of Civil Procedure.
Assessment: no further individual measure appears to be necessary.
General measures: It seems that the violation in this case was an isolated one.
Information is expected on measures taken or envisaged to avoid new, similar violations. In any event, publication of the European Court's judgment and its dissemination among relevant courts are expected in order to raise their awareness of the Convention's requirements as they result from this case.

The Deputies decided to resume consideration of this item at the latest at their first DH meeting in 2010, in the light of information to be submitted on general measures.

75951/01 Viaşu, judgment of 09/12/2008, final on 09/03/2009
The case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions as he could not obtain compensation for a plot of land under the Romanian restitution laws (violation of Article 1 of Protocol No. 1).
In June 2000, the Cătunele Municipal Council informed the applicant that his application for restitution of a plot of land, lodged under Law 1/2000, had been granted. The applicant’s right to restitution was subsequently confirmed on several occasions. By two administrative decisions of 5/04 and 17/05/2002, he was acknowledged as being entitled to compensation as the nationalised land itself could not be returned. The applicant applied to the authorities several times for payment of the compensation but was unsuccessful because of lack of the regulations necessary to implement Law 1/2000. In March 2007 the applicant was informed that the land to which he was entitled might be returned to him before the end of 2007, whereupon his compensation claim would no longer be enforceable.
The European Court noted that more than 8 years after the decision to return the plot of land and more than 6 years after the confirmation of his compensation claims, the decisions have neither been executed nor the applicant received any compensation for the land or for the delay in execution. It further observed that organisational difficulties encountered by the authorities in charge of restitution had been caused by a series of legislative changes to the mechanism for restitution. Those changes have been considered to be ineffective in practice and to have created a climate of legal uncertainty.
Individual measures: The European Court awarded the applicant just satisfaction in respect of all heads of damage.
Assessment: no further measure appears necessary.
General measures: The European Court observed that the violation found in the present case was systemic in nature and had its origin in a deficiency in the Romanian legal order. It also noted that more than a hundred applications pending before the Court, lodged by persons affected by the restitution laws, could in future give rise to further judgments finding violations of the Convention. Invoking the Resolution of the Committee of Ministers Res(2004)3 and its Recommendation Rec(2004)6, the European Court indicated measures that might be appropriate to remedy the systemic problem identified. Thus, it considered that the authorities have to assure by appropriate legal and administrative measures the effective and rapid implementation of the right to restitution, either in kind or compensation, according to the principles provided for by Article 1 of Protocol No. 1 and the case-law of the European Court. Those objectives might be achieved, for example, by amending the current restitution mechanism and urgently setting up simplified and efficient procedures based on legislative and regulatory measures capable of taking into consideration various interests at issue.

Information is expected on measures taken or envisaged to avoid new, similar violations, in particular in the light of the European Court’s observations.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting of 2010, in the light of further information to be provided on general measures.

6079/02 Prodanof and others No. 2, judgment of 14/10/2008, final on 14/01/2009
The case concerns the violation of the applicants’ right to the peaceful enjoyment of their possessions due to the occupation by the state of their flat by virtue of a government decision adopted in contradiction with a final court judgment ordering the restitution of the property to the applicants (violation of Article 1 of Protocol No. 1).
By a final judgment of July 1997, a domestic court ordered the state to restore the applicants’ property which had been nationalised during the communist period. In May 2001, the government adopted a decision transferring the flat from the property of the state into that of the Romanian Intelligence Service.
The European Court noted that the adoption of the government decision and the subsequent occupation by the state of the applicants’ flat for approximately a year and a half constituted an interference with their property rights. It stated that this interference had not been legal, given the fact that the state disposed of a property in respect of which domestic courts had found definitively it had no valid title due to the illegal nationalisation (§§32, 35 and 51 of the judgment).
Individual measures: The property was returned to the applicants before the European Court rendered its judgment. In addition, the European Court awarded them just satisfaction in respect of non-pecuniary damage.
Assessment: no further measure appears to be necessary.
General measures: It seems that the violation in this case was an isolated one.
Information is expected on measures taken or envisaged to avoid, new similar violations. In any event, publication of the European Court's judgment and its dissemination among relevant courts and authorities are expected in order to raise their awareness of the Convention's requirements as they result from this case.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of information to be provided on general measures.

36900/03 Toşcuţă and others, judgment of 25/11/2008, final on 25/02/2009
The case concerns the annulment by domestic courts of the applicants’ title deeds in respect of certain plots of land for which they had not received any compensation (violation of Article 1 of Protocol No. 1).
The European Court noted that the applicants disposed of two title deeds delivered, respectively in 1993 and 1995, by the administrative commission responsible for the application of Law 18/1991. By a final judgment of 7/03/2003 those title deeds were partially annulled on the ground that the administrative commission had not taken into account a judicial decision attributing these plots of land to an orthodox parish. The European Court observed that it was the task of the administrative commission to verify all the requirements provided by law before delivering the title deeds in question. Even supposing that the deprivation of property could be shown to have been in the public interest, the applicants had borne an individual and excessive burden as a result of having been deprived not only of their right to the peaceful enjoyment of two plots of land, but also of any compensation or redress in that connection.
Individual measures: The European Court reserved the question of the application of Article 41 in respect of pecuniary damage.
General measures: It seems that this was an isolated violation resulting from the negligence of the local authorities responsible for the application of Law No. 18/1991.
• Taking into account the direct effect of the European Convention in Romania, publication of the European Court's judgment and its dissemination to the relevant courts and authorities seems to be sufficient.

The Deputies decided:
1. to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on general measures, namely the publication and dissemination of the European Court's judgment;
2. to resume the consideration of possible individual measures once the European Court has delivered its judgment on just satisfaction.

7901/02 Hagiescu and others, judgment of 13/11/2008, final on 13/02/2009
This case concerns the breach of the applicants’ right of access to a court (violation of Article 6§1) and of their right to peaceful enjoyment of their possessions (violation of Article 1 of Protocol No.1) due to the re-examination of a final solution rendered in an earlier procedure.
By a final decision of May 1994, domestic courts found that the nationalisation of the applicants’ property had been illegal. Subsequently, by a final judicial decision of October 2001, the applicants’ action for recovery of possession was rejected on the ground that the nationalisation had been legal, that according to Law No. 10/2001 the possession was public property belonging to the state and that the applicants were entitled to obtain pecuniary compensation.
The European Court considered that the applicants had suffered a breach of their right of access to a court in that their action for recovery of possession had been dismissed by virtue of a law the application of which breached the res judicata principle. The European Court also stated that the applicants had not received, up to present, any compensation and had no guarantee of recovering their possession in the near future.
Individual measures: The European Court found that the question of the application of Article 41 (just satisfaction) was not yet ready for decision.
General measures: It seems that the violation in this case was an isolated one.
Information is expected on measures taken or envisaged to avoid new, similar violations. In any event, publication of the European Court's judgment and its dissemination among relevant courts are expected in order to raise their awareness of the Convention's requirements as they result from this case.

The Deputies decided:
1. to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of information to be provided on general measures;
2. to examine possible individual measures once the Court has rendered judgment on just satisfaction.

- 7 cases against the Russian Federation

*62936/00 Moiseyev, judgment of 09/10/2008, final on 06/04/2009
The case concerns a number of violations related to the criminal proceedings initiated against the applicant in 1999-2001 for high treason.
Conditions of the applicant's detention: The European Court found that they amounted to inhuman and degrading treatment because he was forced to live, sleep and use the toilet in poorly lit and ventilated cells with many other inmates for almost four years (violation of Article 3).
Conditions of transport to court: The European Court found that they amounted to inhuman treatment in view of the fact that he had been transported more than a hundred times in standard-issue prison vans, which had no heating and were often overcrowded, without food, drink or access to a toilet, on average, six hours per day and at times (during his trial or at hearings concerning the extension of his detention) when he needed his powers of concentration (violation of Article 3).
The applicant's pre-trial detention: The European Court considered that this detention was excessively lengthy because the domestic courts failed to justify its extension by reasons which could be regarded as sufficient (violation of Article 5§3).
Right to a prompt examination of the lawfulness of detention: The European court found that the Supreme Court had not examined the applicant’s appeals against two decisions, of September and December 2000 rejecting his requests to be freed, and had not promptly decided upon other appeals introduced by the applicant against the decisions of July 2001 (violations of Article 5§4).
Independence and impartiality of the trial court: The European Court noted that there were eleven replacements of the judges on the bench in the applicant’s case. The reasons for such replacements were only made known on two occasions. Article 241 of the Code of Criminal Procedure only mentioned the possibility of replacing a judge who was “no longer able to take part in the proceedings”, without setting out the circumstances in which such a replacement was possible or indeed required. Nor did this Article contain any procedural safeguards. In these circumstances, the European Court found that Russian criminal law failed to provide the guarantees that would have been sufficient to exclude any objective doubt as to the absence of inappropriate pressure on judges in the performance of their judicial duties (violation of Article 6§1).

Proceedings in criminal cases against the applicant: The European Court found that they were excessively long (violation of Article 6§1).
Unfairness of the proceedings: The Court found that the prosecuting authority had had unrestricted control in the matter of visits by counsel to the applicant and had been able to peruse the documents exchanged between them, which had the effect of giving the prosecution advance knowledge of the defence strategy and placed the applicant at a disadvantage vis-à-vis his opponent. The Court further found that access by the applicant and his defence team to the case-file and their own notes – which were kept in a special secret department of the detention facility and the Moscow City Court – had been so curtailed that these measures had effectively prevented them from using the information contained in them, since they had had to rely solely on their recollections. Finally, the Court considered that the suffering and frustration which the applicant must have felt on account of the inhuman conditions of transport and confinement had impaired his faculty for concentration and intense mental application in the hours immediately preceding the court hearings, when his ability to instruct his counsel effectively and to consult with them had been of primordial importance. The cumulative effect of the conditions and the inadequacy of the available facilities had excluded any possibility for the applicant to prepare his defence in advance, especially taking into account that he could not consult the case-file or his notes in his cell. The overall effect of these difficulties, taken as a whole, had so restricted the rights of the defence that the principle of a fair trial guaranteed by Article 6 was denied (violation of Article 6 §§ 1 and 3 (b) and (c)).
The applicant’s right to receive family visits whilst in detention: The European Court found that the Custody Act (Federal Law on the Detention of Suspects and Defendants, No. 103-FZ of 15/07/1995) and the Internal Rules for Remand Centres fell short of the requirement of foreseeability as they conferred unfettered discretion on the investigator in this matter but did not define the circumstances in which a family visit could be refused. The provisions at issue only mentioned the possibility of refusing family visits, without saying anything about the duration of the measure or the reasons that might warrant its application. The European Court further found that the Custody Act restricted the maximum frequency of family visits to two per month in a general manner, without affording any degree of flexibility to determine whether such limitations were appropriate or indeed necessary in each individual case. The European Court found no reason for such stringent limitations and consequently held that the authorities failed to maintain a fair balance of proportionality between the means employed and the aim they sought to achieve. Finally, the European Court found a violation of the applicant’s right to respect for family life on account of the separation of the applicant from his family by glass partition (violations of Article 8).
The applicant’s correspondence: The European court considered that Russian Law provided no legal protection against arbitrary interference by the public authorities in the applicant’s right to respect for his correspondence (violation of Article 8);
Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained.
On 12/01/2009 the applicant informed the Secretariat that he was no longer in detention and had no intention to seek the re-opening of the proceedings in his case.
General measures:
1) Independence and impartiality of the trial court: The new Code of Criminal Procedure has entered into force.
Information is therefore awaited on new rules applicable to this issue.
2) Unfairness of the proceedings: The new Code of Criminal Procedure has entered into force.
Information is therefore awaited on new rules applicable to this issue.
3) Poor conditions of pre-trial detention and lack of an effective remedy in this respect: These issues are being examined in the framework of the Kalashnikov group of cases (47095/99, Section 4.2).
4) Poor conditions of transport to the courthouse: This issue is also being examined in the framework of the Kalashnikov group of cases (Section 4.2).
5) Excessive length of pre-trial detention and criminal proceedings: These issues are being examined in the framework of the Klyakhin group of cases (46082/99, 1065th meeting September 2009).
6) Restrictions on detainees’ correspondence and family visits: These issues are being examined in the Vlasov case (78146/01, Section 4.2).
7) Publication and dissemination
Information is awaited on publication of the judgment of the European Court and its dissemination, in particular to the Federal Service for Execution of Sentences, to the relevant departments of the Ministry of the Interior, to prosecutors and to courts, possibly with circular letters from their hierarchy.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH) in the light of information to be provided on individual and general measures.

14939/03 Zolotukhin Sergey, judgment of 10/02/2009 – Grand Chamber
The case concerns the breach of the principle of non bis in idem (violation of Article 4 of Protocol No.7).
On 4/01/2002 the applicant was convicted of “minor disorderly acts” in administrative proceedings and sentenced to three days’ detention. On 23/01/2002 criminal proceedings were brought against the applicant on a charge based on the same conduct of the applicant and substantially the same facts. On 2/12/2002 the applicant was acquitted by a district court. The acquittal was not based on the fact that the applicant had been tried for the same actions under the Code of Criminal Offences. The district court found that the evidence against the applicant failed to meet the criminal standard of proof.
Individual measures: The European court awarded just satisfaction in respect of the non-pecuniary damage sustained.
Assessment: No individual measure appears necessary.
General measures: The European Court noted that the principle of non bis in idem is restricted to the criminal justice sphere in the Russian legal system. Under the Code of Criminal Procedure, a previous conviction for an essentially similar administrative offence does not constitute a ground for discontinuing criminal proceedings. The Russian Constitution protects an individual against a second conviction for the same “crime”.
Information is awaited on measures taken or envisaged to avoid a repetition of proceedings in a situation where the defendant is on trial for an offence of which he or she has already been finally convicted or acquitted under the Code of Administrative Offences. Information is also awaited on publication of the European Courts’ judgment and its dissemination, in particular to all courts, in particular to the Gribanovskiy District Court and prosecutors.

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 general measures.

4378/02 Bykov, judgment of 10/03/2009 – Grand Chamber
The case concerns interference by the authorities with the applicant’s right to respect for his private life which was not “in accordance with law” (violation of Article 8). In 2000 a criminal investigation was opened against the applicant and a covert operation was conducted according to the Operational-Search Activities Act. This Act was interpreted by the authorities as not requiring any prior judicial authorisation for their activities as the “guest house” where the action took place was not regarded as a “home” and the use of the radio-transmitting device was not interpreted as the “telephone tapping”.
The case further concerns the authorities’ failure to adduce relevant and sufficient reasons to justify the applicant’s detention pending trial (violation of Article 5§3).
Individual measures: The European court awarded just satisfaction in respect of the non-pecuniary damage sustained. The applicant is no longer detained on remand.
Assessment: No further individual measure appears necessary.
General measures:
1) Violation of Article 8: The European Court noted in its judgment that, to comply with the requirement of the “quality of the law”, a law which confers discretion must indicate the scope of that discretion and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (§78). The European Court found that in the absence of specific and detailed regulations the interception as part of an “operative experiment” was not accompanied by adequate safeguards against possible abuses (§81).
Information is awaited on measures taken or envisaged to ensure adequate safeguards against possible abuses in the use of surveillance techniques.
2) The excessive length of the pre-trial detention without sufficient grounds (violation of Article 5§3): The general measures are examined in the Klyakhin group of cases (46082/99, 1065th meeting, September 2009).
3) Publication and dissemination of the European court’s judgment
Information is awaited in this respect.

The Deputies decided to resume consideration of this case at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

16159/03 Lobanov, judgment of 16/10/2008, final on 16/01/2009
The case concerns the applicant’s unlawful detention due to the delay in his release from imprisonment in Russia, as ordered by a Kazakh court (violation of Article 5§1). The applicant was convicted and sentenced to imprisonment in Kazakhstan. At his own request, he was transferred to Russia to serve his sentence. On 16/03/2000, following the applicant’s request for supervisory review, a Kazakh court reclassified the offence and discharged the applicant from serving the remainder of his sentence. The Russian authorities received the court’s decision on 18/05/2000. The applicant was released on 10/07/2000, i.e. one month and twenty-two days later. The European Court criticised the neglect on the part of the Russian authorities in respect of the applicant’s right to liberty. The Court noted a striking slowness in the delivery of documents concerning the applicant’s release.
The case further concerns the lack of an enforceable right to compensation for the deprivation of liberty, as the domestic courts dismissed his compensation claim establishing no unjustified delay in executing the Kazakh court’s decision (violation of Article 5§5).
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained.
Assessment: No further individual measure appears necessary.
General measures:
1) Violation of Article 5§1:
Information is awaited on legislative and administrative framework which would ensure that all measures required for a person’s release are taken promptly and diligently, in particular, on the possibility of using the mechanism for delivery of Government’s mail for correspondence concerning release orders.
2) Violation of Article 5§4:
Information is awaited on legislative framework governing compensation for damages sustained as a result of unlawful detention. Information is also awaited on publication of the European Courts’ judgment and its dissemination.

The Deputies decided to resume consideration of this case at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

13470/02 Khuzhin and others, judgment of 23/10/2008, final on 23/01/2009
The case concerns the violation of the applicants’ right to the presumption of innocence (violation of Article 6§2), in that, a few days before their trial, three prosecution officials discussed the applicants’ case in detail in a broadcast by a state television channel. One of the officials said that the “crime” they had committed was characteristic of their “cruelty and meaningless brutality”.
The case also concerns the violation of the first applicant’s right to respect for his private life, as his photograph from the criminal file was shown on television, without his consent (violation of Article 8).
It also concerns the violation of the third applicant’s right to the peaceful enjoyment of his possessions on account of the unlawful impounding and retention of his van (violation of Article 1 of Protocol No.1).
It finally concerns the violation of the equality-of-arms principle in that the courts examining their defamation actions against a journalist and the third applicant’s claim relating to damage caused to his van refused them leave to appear (violation of Article 6§1).
Individual measures: The applicants’ claim under Article 41 of the Convention was rejected by the European Court, as it had been submitted by a person who was not properly authorised to do so. All three applicants were released. The second applicant died in an accident in 2006.
Information is awaited as to whether the first and third applicants have filed for the reopening of the criminal and civil proceedings and whether it is open to the first applicant to claim damages in respect of the publication of his photograph.
General measures:
1) Breach of the presumption of innocence (Article 6§2) and respect for private life (Article 8):
Information is awaited on the regulatory framework applicable to statements made by officials in respect of suspects and the disclosure of information from the investigation file.

2) Attendance of hearings by convicted persons serving their sentences (Article 6§1): On several occasions the Russian Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It had emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or carry out any other procedural steps.
Information is awaited on how the exercise of procedural rights of detainees is ensured in civil proceedings.
3) Breach of property rights (Article 1 of Protocol No. 1):
Information is awaited on publication of the European Courts’ judgment and its dissemination.

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 and general measures.

33307/02 Galich, judgment of 13/05/2008, final on 26/01/2009
The case concerns a violation of the applicant’s right to a fair trial due to the appeal court’s decision, taken of its own motion, to reduce the amount of statutory interest awarded to him.
Article 333 of the Civil Code as interpreted by Joint Ruling adopted by the Supreme Court and the Supreme Commercial Court No. 13/14 of 8/10/1998 vests courts with discretionary power to reduce the amount of interest in line with the real losses suffered by the creditor. In the applicant’s case, the first-instance court did not apply Article 333. Neither of the parties to the proceedings raised this issue at the appeal stage. The European Court found that by depriving the parties of an opportunity to be heard on the issue which involved a complex assessment of questions of fact, the appeal court failed to exercise its discretion in a manner consistent with the Convention’s requirements (violation of Article 6§1).
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicant.
Information is awaited as to whether the applicant may request the re-opening of proceedings following the European Court’s judgment.
General measures: It would appear that the violation was due to the practice of domestic courts which, when applying Article 333 of the Civil Code, do not invite the parties to the proceedings to present their arguments in this respect.
Information is awaited on the publication of the European Court’s judgment and its disseminationin particular to all courts, possibly together with a circular letter of the Supreme Court.

The Deputies decided to resume consideration of this item at the latest their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual and general measures.

10877/04 Kuznetsov Sergei, judgment of 23/10/2008, final on 23/01/2009
The case concerns a breach of the applicant’s freedom of expression and assembly due his being convicted for having taken part in a picket in front of the Sverdlovsk Regional Court, distributing pamphlets alleging corruption of the court’s president and collecting signatures for a petition calling for his dismissal (violation of Article 11 interpreted in the light of Article 10).
Considering the charges upheld against the applicant, the European Court noted that the belated notification of the authorities about the planned picket (first charge) was neither relevant nor sufficient reason for imposing administrative liability on the applicant because the authorities were not prevented from making necessary preparations. Reiterating that any demonstration in a public place inevitably causes the disruption of ordinary life and taking into account the applicant’s flexibility and readiness to co-operate with the authorities, the European Court did not accept the alleged obstruction of passage (second charge) as a relevant and sufficient reason for the interference. As for the alleged discrepancy between the aims of the picket and the disseminated materials (third charge), the Court noticed that the domestic courts’ judgments did not contain any analysis as to what the alleged differences were between the declared aims of the picket and the contents of the material distributed. Moreover, the European Court found that the publications did not exceed the bounds of acceptable criticism, observing in particular the importance of preserving the freedom of a political debate on a matter of general and public concern.

The European Court concluded that in spite of the relatively small amount of the fine imposed on the applicant, the interference was not necessary in a democratic society.
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained.
Assessment: Taking into account the small amount of the fine and that according to the relevant provisions of the Russian Code of Administrative offences a person ceases to be administratively penalised one year after the imposition of the administrative penalty, no further individual measure appears necessary.
General measures:
Information is awaited on measures envisaged to prevent new, similar violations, particularly measures of dissemination and awareness-raising.

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 general measures.

- 2 cases against Serbia

2361/05 Vrenčev, judgment of 23/09/2008, final on 23/12/2008
The case concerns the unlawfulness of the applicant’s prolonged pre-trial detention without any judicial review in 2004 in Belgrade. The applicant was only brought before a judge 20 days after his arrest, not to examine the lawfulness of his detention but to judge him (violation of Article 5§3).
The case also concerns the violation of the applicant’s right “to be released pending trial”, which could have been “conditioned by [his] guarantees to appear” in court (§77). The applicant filed a motion seeking release on bail or alternatively confinement to his residence. These were apparently never considered by the court. Ten days later, he was merely fined for a drug offence, which was a lenient sentence for such an offence and, given the circumstances, certainly the only one which could have been anticipated (violation of Article 5§3).
The European Court noted that whenever the danger of absconding can be avoided by bail or other guarantees, the accused must be released, it being always incumbent on the national authorities duly to consider such alternatives. It also noted that where a lighter sentence may be anticipated, the reduced incentive for the accused to abscond should also be taken into account (§76).
The case also concerns the lack of diligence in review proceedings before the Supreme Court initiated by the applicant with regard to the initial detention order and the absence of an oral hearing. It took more than 6 days for the applicant’s lawyer to receive the Supreme Court’s decision after the appeal had been correctly lodged, in breach of the 48-hour time-limit prescribed by the Code of Criminal Procedure (violation of Article 5§4).
Finally, the case also concerns the violation of the applicant’s enforceable right to compensation with regard to the unlawful detention (violation of Article 5§5).
The European Court noted that since the Serbian Supreme Court deemed the applicant’s detention lawful, no domestic case-law existed to the effect that the applicant could obtain compensation for detention in breach of the Convention under these circumstances (§93).
Individual measures: The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damage. The applicant is no longer detained.
Assessment: In these circumstances no further measure appears necessary.
General measures: The European Court's judgment has been translated into Serbian and published in the Official Gazette (No. 17 of 14/10/2008) as well as on the website of the Government Agent (www.zastupnik.gov.rs). The judgment was also published on the Internet page of the Paragraf legal magazine, with expert comments. The Government Agent forwarded the judgment to the Supreme Court of Serbia requesting its distribution to all courts. He also made several public statements relating to the judgment.
Information is awaited on measures taken or envisaged to prevent 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 information to be provided on general measures.

41760/04 Kostić, judgment of 25/11/2008, final on 25/02/2009
This case concerns the violation of the applicants’ right to the peaceful enjoyment of their possessions due to the authorities’ failure, since 1998, to enforce a final administrative decision ordering the demolition of an unauthorised construction, which affected a house co-owned by the applicants (violation of Article 1 of Protocol No. 1).
The European Court noted that the very existence of an unauthorised construction amounted to an interference with the applicants’ property rights (§68) and that it was the state’s responsibility to make use of all available legal means at its disposal to enforce a final administrative decision, even if it had been issued against a private party (§67).
Individual measures: The European Court held that the applicants’ “pecuniary damage claim must be met by the Government, ensuring, through appropriate means, the speedy enforcement of the demolition order dated 2 September 1998” (§80).
Information provided by the applicants (letter of 20/03/2009): The applicants’ lawyer indicated that the competent administrative authority decided on 09/03/2009 to adjourn sine die the enforcement of the demolition order of 02/09/1998 pending the termination of administrative proceedings subsequently initiated with a view to obtaining a building permit for the unauthorised construction. This information was transmitted to the Serbian authorities on 24/03/2009 together with the decision forwarded by the applicants’ lawyer.
Information is awaited on measures taken or envisaged to ensure speedy execution of the demolition order of 02/09/1998 as requested by the European Court.
General measures: The issue of the authorities’ failure to abide by a final administrative decision within the context of an eviction order is examined, inter alia, in the case of Ilić (Jevremović group of cases, 3150/05, Section 4.2). The Serbian authorities are also taking measures concerning their failure to enforce final court decisions in the group of cases EVT Company (application number 3102/05, Section 4.2).
Information is awaited on measures taken or envisaged to ensure enforcement of final administrative decisions in compliance with the Convention, in particular those concerning demolition orders in the context of unauthorised construction.
The European Court’s judgment has been translated into Serbian and published in the Official Gazette (No. 114 of 16/12/2008) as well as on the website of the Government Agent (www.zastupnik.gov.rs). The judgment was also published on the Internet page of the Paragraf legal magazine, with expert comments. The Government Agent forwarded the judgment to the Supreme Court of Serbia and Ministry of Public Administration and Local Self-Government requesting its distribution to all Serbian courts and administrative authorities. He also made several public statements relating to the judgment.

The Deputies decided to resume consideration of this item when it next examines the EVT Company group of cases.

- 1 case against Slovenia

*71463/01 Šilih, judgment of 09/04/2009 – Grand Chamber
The case concerns the inefficiency of the Slovenian judicial system in dealing with the applicants’ claim that their son’s death in 1993 resulted from medical malpractice. The applicants instituted criminal proceedings against the doctor and civil proceedings for damages against both the hospital and the doctor. The criminal proceedings, in particular the investigation, were excessively long and lasted from 1993 to 2000, when they were finally discontinued. The civil proceedings were instituted in 1995 and are still pending before the Constitutional Court. They were stayed for three years and seven months pending the outcome of the criminal proceedings; however, for the two years before they were officially stayed, the civil proceedings were in fact already at a standstill (§204). After the criminal proceedings were discontinued it took the domestic courts a further five years and eight months to rule on the applicants’ civil claim (§207). Lastly the applicants’ case was dealt with by at least six different judges in a single set of first-instance proceedings (§210).
The European Court noted the shortcomings above and found that domestic authorities had failed to deal with the applicants’ claim arising out of their son’s death with the requisite level of diligence (§211) (procedural violation of Article 2).
Individual measures: The European Court granted the applicants just satisfaction in respect of the non- pecuniary damage sustained. Furthermore, it appears that the prosecution of the alleged offence of medical malpractice became time-barred in 2003 (§47).
Information would be useful on the outcome of the civil proceedings still pending before the Constitutional Court.

General measures:
Information is awaited on measures taken or envisaged to prevent similar violations concerning medical malpractice. It appears at the outset that the translation and wide dissemination of the European Court's judgment, including to all authorities concerned, will be necessary.

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 and general measures.

- 1 case against Sweden

23883/06 Khurshid Mustafa and Tarzibachi, judgment of 16/12/2008, final on 16/03/2009
The case concerns the violation of the freedom to receive information of the applicants, Swedish nationals of Iraqi origin, parents of three children, who were evicted from their flat for refusing to remove a satellite dish (violation of Article10).
The applicants refused to dismantle a satellite dish, relying on their constitutional right to receive information. Consequently the landlord (a real estate company), by a letter of 2/04/2004, gave them notice of termination of the tenancy agreement of the flat they had rented since 1999. Later in April 2004, the landlord initiated proceedings against the applicants and other tenants who had installed satellite dishes before the Rent Review Board in Stockholm, seeking execution of the notice of termination, claiming that the applicants failed to maintain good sanitary conditions, order and good custom. Shortly after receiving the notice to quit, the applicants dismantled the satellite dish, and installed a new one that extended through a window. The Board, balancing the interests of the landlord for order and good custom and of the applicants to use a satellite dish, found that the new installation did not involve a breach of rule 13 of the tenancy agreement, considered that the risk of damage was negligible, the only inconvenience being the aesthetic aspect. The landlord appealed to the Svea Court of Appeal.
By a final decision of 20/12/2005, the Svea Court of Appeal found that the applicants had disregarded their obligations as tenants under the tenancy agreement and chapter 12, section 25 of the Land Code to such a degree that the agreement should not be prolonged. Although the new satellite installation was safe, the landlord’s interest for order and good custom weighed more heavily than the applicants’ freedom to receive information. The outcome of the Court of Appeal decision was the applicant’s eviction from the flat in which they have lived for more than six years.
The European Court noted that at that moment there were no other means for the applicants to receive television programmes in Arabic and Farsi broadcast from their place of origin, Iraq. Moreover, the safety concerns expressed by the owner were examined by the domestic courts which concluded that the installation was safe. Furthermore, the Court noted that the applicant’s flat was located in one of the suburbs of Stockholm with no particular aesthetic aspirations.
The European Court stressed that the outcome of the Court of Appeal decision was the eviction of the applicants and their three children from their home, a decision that was a disproportionate measure and not necessary in a democratic society. The Court concluded that the respondent state failed in its positive obligation to protect the right of the applicants to receive information.
Individual measures: Following the Svea Court of Appeal decision, the landlord offered the applicants the opportunity to stay in their flat if they agreed to remove the satellite dish, but they refused and moved from the flat on 1/06/2006 to another flat situated 110 km west of Stockholm.
The European Court awarded just satisfaction covering the total sum claimed by the applicants for pecuniary damage. It concerns the increased costs of the first applicant’s journeys to and from work for a two-year period following their move to another city.
The applicants were also awarded just satisfaction in respect of non-pecuniary damage and cost and expenses.
Assessment: no further individual measure seems necessary
General measures:
The violation of Article 10 in this case comes from an isolated situation resulting from the interpretation of the Land Code by the Svea Court of Appeal. Further, it should be underlined that the Convention and the case-law of the European Court enjoy direct effect in the Swedish legal order. Consequently, the publication and the dissemination of the judgment to the competent authorities appear to be sufficient for the execution of the judgment.

Information is awaited on publication and dissemination of the judgment to the competent authorities.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH) in the light of the information to be provided on general measures, namely publication and dissemination of the judgment to the competent authorities.

- 1 case against Switzerland

49492/06 Carlson, judgment of 06/11/2008, final on 06/02/2009, rectified on 08/12/2008
This case concerns a violation of the applicant’s right to respect for his family life (violation of Article 8).
The applicant, a United States national, is the father of a child born in 2004 of his marriage to a Swiss. In the summer of 2005, the wife, who had been living with her husband and child in the United States decided to take up residence in Switzerland. Two suits were rapidly brought before the Swiss Courts: in September 2005 the wife sued for divorce and custody of the child, whilst the following month the applicant applied for the return of the child to the United States by virtue of the Hague Convention of 25/10/1980 on the civil aspects of the international abduction of children. The Swiss judge joined the two proceedings, but did not issue his (negative) decision with regard to the applicant’s application until mid-February 2006.
The European Court considered that the applicant’s rights under Article 8 were thereby violated for three reasons, essentially linked to the slowness in implementing the child’s possible repatriation:
- Article 16 of the Hague Convention requires the suspension of proceedings on the merits of custody until a decision has been taken on possible repatriation. Here, the decision to join the proceedings was contrary to the terms of the Hague Convention and had the effect of prolonging the proceedings with regard to repatriation;
- Article 11 of the Hague Convention requires the competent authorities to proceed with urgency with a view to the child’s return; more than six weeks’ inactivity could give rise to a request for explanation. In this case, the three and a half months between application and decision were excessive;
- Article 13 of the Hague Convention provides that return of the child is not imperative where the person opposing return (in this case the mother) can prove that the person having charge of the child (in this case the father) had consented to the child’s being removed or not returned. The Swiss judge turned the burden of proof on its head, imposing on the applicant rather than on the mother the responsibility for establishing that he had not consented to the child’s being removed or not returned, which placed him in a clearly disadvantageous position from the start.
Lastly, the European Court was not convinced that Swiss courts had taken due account of the overriding interest of the child (understood in the sense of a rapid decision to reintegrate him in the usual context of his life) in evaluating the application for the child’s return under the Hague Convention.
Individual measures: According to the latest information known, the applicant still resides in the United States and the child is with his mother in Switzerland. The divorce proceedings are apparently still pending and the applicant still aims to repatriate his child to the USA once they are over. He obtained visitation rights in November 2007.
Nonetheless, as the European Court pointed out from the start (§70), the applicant did not complain of the motives ultimately relied on for refusing his application for the child’s return, but rather of the way the national courts responded to his application (i.e. his complaint related only to the unfolding and to the length of the proceedings). The considerable moral prejudice sustained by the applicant, in particular as the shortcomings identified in the implementation of the Hague Convention brought about a break in relations between the applicant and his son, justified the grant of just satisfaction.
The Swiss authorities’ comments would be helpful as to whether individual measures are envisaged in the light of these elements and if so, what.

General measures: The proceedings which failed to satisfy the requirements of the Hague Convention took place before a first-instance court (President of the District Court of Baden, Canton of Aargau) and none of the omissions was put right by the higher jurisdictions (§81). The Court not least recalled the principle that contracting states are responsible for organising their services and training their officials in such a way as to comply with the requirements of the Convention, and that this was all the more true in a field as sensitive as that of child abduction, in which a particularly high degree of diligence and prudence was called for (§79).
Measures have already been taken to shorten and simplify proceedings in such cases. As already described in the context of the case of Bianchi against Switzerland (Final Resolution CM/Res/DH(2008)58) a new federal law on the international abduction of children will come into force on 01/07/2009. This law provides: accelerating return procedures by conferring competence on a single cantonal court and removing other legal procedures at cantonal level; giving preference to the conclusion of friendly settlements in disputes between parents; combining decisions on return with enforceable measures; and requiring cantons to designate a single authority in charge of enforcement. The draft law also provides that the parties should whenever possible be heard by the court and that the child or children should be heard in an appropriate manner. Lastly, the court is required, to the extent this is necessary, to work with the competent authorities of the state in which the child habitually resided immediately before being abducted.
In addition, it has been pointed out that 01/07/2009 will also mark, in Switzerland, the entry into force of the Hague Convention of 19/10/1996 on competence, applicable law, recognition, enforcement and co-operation regarding parental authority and child protection measures. These new international rules aim in particular to avoid conflicts of competence between states and the adoption of contradictory decisions. Pursuant to this Convention, Switzerland will designate a Central Authority at federal level: i.e. the federal Justice Department.
Finally, in line with its usual practice and to avoid similar violations immediately, the Carlson judgment has been published and sent out to the authorities concerned.
Assessment: This being the case, no further general measure seems necessary.

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.

- 18 cases against Turkey

8327/03 Kılavuz, judgment of 21/10/2008, final on 21/01/2009
The case concerns the failure of the prison authorities in their obligation to protect the right to life of the applicant’s son, who killed himself with his belt in November 2001 when incarcerated in Bilecik prison.
The European Court found that even though the psychological problems suffered by the applicant’s son, confirmed in a medical report placed on his personal prison file, indicated that he obviously needed close supervision, the authorities had not taken the measures necessary to protect his right to life (violation of Article 8).
Individual measures: The European Court granted the applicant just satisfaction in respect of the non pecuniary damage suffered by her son and the pecuniary and non-pecuniary damage she had herself sustained.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations, and on the translation and dissemination of the European Court’s judgment to all authorities concerned, in particular prison authorities.

The Deputies decided to resume consideration of this item at the latest their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

25060/02+ Erdal Aslan, judgment of 02/12/2008, final on 02/03/2009
This case concerns the unfairness criminal proceedings against the applicant. He was convicted in November 1999 for armed action aimed at upsetting the constitutional order and sentenced to life imprisonment.
The European Court, noting that the applicant had not benefited from the assistance of counsel whilst on remand, considered that his conviction was essentially based on statements he made under duress, described by the Court as torture (violations of Articles 3, 6§§1 and 3c)).
The Court also found that the applicant had not had at his disposal an effective remedy whereby he might complain of the ill-treatment inflicted on him (violation of the procedural aspect of Article 3) and that his continued detention throughout his trial was unjustified (violation of Article 5§3).
It also considered that the absence of an effective appeal to verify the lawfulness of his detention constituted a violation of Article 5§4.
Individual measures: In view of the seriousness of the violation of the Convention and having regard to the fact that the applicant is still suffering the consequences of the violation, the reopening of proceedings appears to be the most appropriate redress for the applicant (same situation as in the case of Hulki Güneş, 1056th meeting, May 2009).
Information is awaited on the measures envisaged by the Turkish authorities to find a rapid solution to the applicant's situation.
General measures: General measures concerning ill-treatment and the absence of an effective investigation are under examination before the Committee in the cases concerning the actions of the Turkish security forces (Aksoy group, 1065th meeting, September 2009).
As for the violations found by the Court of Article 5§§3 and 4, these matters are under consideration in the Demirel Group (39324/98, Section 5.2).

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual and general measures.

1767/03+ Dağdelen and others, judgment of 25/11/2008, final on 25/02/2009
This case concerns primarily the unfairness of criminal proceedings against the applicants Őnder Dağdelen and Ergűl Çiçekler. They were sentenced, by a judgment which became final in December 2003, to life imprisonment. The European Court pointed out that these two applicants had not been assisted by a lawyer while in police custody and considered that the statement that they made to the police under duress constituted an essential basis of their conviction (Article 6§§1 and 3 c)).
The case also concerns the ill-treatment to which the applicants had been subjected while in police custody (violation of the substantive aspect of Article 3), and the absence of an effective investigation (violation of the procedural aspect of Article 3).
Individual measures: In view of the seriousness of the violation of the Convention and having regard to the fact that the applicants Őnder Dağdelen and Ergűl Ciçekler are still suffering the consequences of the violation, the reopening of proceedings appears to be the most appropriate redress for the applicant (same situation as in the case of Hulki Güneş, 1056th meeting, May 2009).
Information is awaited on the measures envisaged by the Turkish authorities to find a rapid solution to the applicant's situation.
General measures: General measures concerning ill-treatment and the absence of an effective investigation are under examination before the Committee in the cases concerning the actions of the Turkish security forces (Aksoy group, 1065th meeting, September 2009).

The Deputies decided to resume consideration of this item at the next examination at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual and general measures.

64119/00+ Kayasu, judgment of 13/11/2008, final on 13/02/2009
This case concerns the violation of the freedom of expression of the applicant who was at the material time a prosecutor, due to his criminal conviction arising from terms used in the formulation of charges he prepared against former army generals involved in a coup d’Etat in September 1980 (violation of Article 10).

The European Court considered that the conviction of the applicant under section 159 of the Penal Code for insult to the armed forces, and the consequences of this conviction, i.e. dismissal from the function of prosecutor and ban on exercising the calling of advocate (section 5(b) of Law No; 1136 on the profession of advocate) were disproportionate with regard to any legitimate aim pursued.
The case also concerns the absence of any means of appeal against the disciplinary sanctions imposed on the applicant by the Supreme Judicial Council (violation of Article 13 in conjunction with Article 10).
The European Court found that Article 129 of the Turkish Constitution vested Parliament with the power to remove certain categories of disciplinary sanctions (warnings and reprimands) in respect of all public officials from judicial review. In addition, Article 159 exempts all decisions of the Supreme Judicial Council from appeal before a court of law.
Furthermore the Court did not consider that to contest a disciplinary punishment before the board set up within the Supreme Judicial Council pursuant to its rules to examine such contestations provided an adequate response to the requirements of Article 13, in that the members of the board were the same people who had pronounced the disciplinary punishment at issue within the Supreme Council, whose rules provided no measure to guarantee the impartiality of its members sitting on the board.
Individual measures: The European Court awarded the applicant just satisfaction in respect of all heads of damage.
Information is awaited on measures making it possible to provide appropriate redress to the applicant, erasing the consequences of the violation found, such as the removal of the ban on the exercise of judicial functions and the erasure of the conviction from the applicant’s criminal record.
General measures:
1) Lack of an effective appeal against certain categories of disciplinary sanctions (Article 129 of the Constitution): The Turkish authorities indicated on 29/11/2007 in the context of the Karaçay case (Application No. 6615/03) (Section 4.2) that a Bill on public officials (Kamu Personeli Kanunu Tasarısı) had been drafted by the competent legislative service. Section 95 of this Bill would provide that “warnings” would be subject to judicial review.
Information is awaited on the state of advancement of this Bill.
2) Lack of an effective appeal against decisions of the Supreme Judicial Council:
Information is awaited on the preparation of an action plan, as provided in Minister’s Deputies’ working methods (see CM/Inf(2004)8final) including a calendar for the implementation of the general measures to be taken. A letter will be sent to the government to this effect.
Information is also awaited on the dissemination of the European Court’s judgment to the judicial authorities concerned.

The Deputies decided to resume consideration of this item at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH) in the light of information to be provided on individual and general measures.

25471/02 Gemici, judgment of 02/12/2008, final on 02/03/2009
1606/03 Salihoğlu, judgment of 21/10/2008, final on 21/01/2009
These cases concern the infringement of the applicants’ right to receive information and ideas as they were fined, under Article 526 of the former Criminal Code, for failing to comply with an order issued by a competent authority. The applicants were in possession of publications banned by court order.
The European Court noted that the court orders pursuant to which the publications had been prohibited had not been published and that there was absolutely no proof that the applicants had ever been aware of them. The Court emphasised that refusal to comply with a judicial decision could only be considered reprehensible if it had been brought to the knowledge of the individual concerned. The applicants could not have foreseen, “to a degree that was reasonable” that the possession of the relevant publications might leave them liable to criminal penalties under Article 526 of the former Criminal Code. Consequently, the requirement of foreseeability had not been met and the interference had not been prescribed by law (violations of Article 10).
The cases also concern the unfairness of these criminal proceedings because the applicants were ordered, by “sentence orders”, to pay fines (210 Euros and 184 US Dollars respectively) without an oral hearing and solely on the basis of an examination of the file (violations of Article 6§1).
Individual measures: The European court awarded just satisfaction in respect of non-pecuniary damages (also pecuniary damages in the case of Gemici).

Assessment: No further individual measure appears to be necessary.
General measures:
1) Violation of Article 10: Article 526 of the Criminal Code is no longer in force following its abrogation in 2005. Article 32 of the new Code on Misdemeanors (Law no. 5326 came into force on 31/03/2005) categorizes an act of failure to comply with an order issued by a competent authority as a misdemeanor. In addition, Article 32 requires such an act be punishable in situations clearly established under the relevant laws.
Assessment:  Information is awaited regarding the publication and dissemination of the judgment of the European Court.
2) Violation of Article 6§1: These cases present similarities to the Adem Arslan case (75836/01) (Section 6.2.).

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on on general measures, namely publication and dissemination of the judgment of the European Court.

28940/95 Foka, judgment of 24/06/2008, final on 26/01/2009
This case concerns the infringement of the applicant’s right to freedom of expression due to the unjustified confiscation of her cassettes, books, diary and maps by a public authority (violation of Article 10).
On 13/01/1995 the applicant, a Greek-Cypriot resident of the northern part of Cyprus, travelled to the Ledra Palace checkpoint to cross into the northern part of Cyprus. At the checkpoint the applicant’s bus was met by agents of the “Turkish Republic of Northern Cyprus” (“TRNC”) who took the applicant to a police station nearby. The applicant’s bag was searched and a number of cassettes, books, a diary and maps containing historical and political information were confiscated.
The European Court considered that the respondent state had not shown that the confiscation of the items corresponded to a “pressing social need” in the meaning of its case-law. The Court was therefore unable to reach the conclusion that the interference with the applicant’s right to freedom of expression was justified under Article 10(2).
Individual measures: The applicant was awarded just satisfaction to the value of the confiscated items.
Assessment: in these circumstances, no other measure appears necessary.
General measures:
Information is awaited on any measures taken or envisaged in the light of the judgment.

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 information to be provided the general measures.

22427/04 Canlı Cematettin, judgment of 18/11/2008, final on 18/02/2009
The case concerns the infringement of the applicant's right to respect of his private life in that the police prepared and submitted to a domestic court an inaccurate report in the context of criminal proceedings against him (violation of Article 8).
The European Court noted that, as the applicant had never been convicted by a court of membership of illegal organisations, referring to the applicant as a “member” of such organisations in a police report had been potentially damaging to his reputation.. The Court observed that the Police regulations on fingerprinting obliged the police to include in their records all information regarding the outcome of any criminal proceedings in respect of persons accused of serious offences, including membership of an illegal organisation (the offence with which the applicant was charged in the past but of which he was subsequently cleared in 1990). Nevertheless, not only had the information in the applicant’s report been false, but it had also omitted any mention of the applicant’s acquittal and the discontinuation of the criminal proceedings in 1990. Moreover, the decisions rendered in 1990 had not been appended to the report when it had been submitted to the court in 2003. Those failures, in the opinion of the Court, were contrary to the unambiguous requirements of the Police Regulations and deprived the applicant a number of substantial procedural safeguards provided by domestic law for the protection of his rights under Article 8. Accordingly, the Court found that the drafting and submission to the court by the police of the report in question had not been “in accordance with the law”.
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained
Assessment: Under these circumstances, no other individual measure is necessary.

General measures:
Information is awaited on the publication and wide dissemination of the judgment of the European Court to all relevant authorities.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on general measures, namely publication and dissemination of the judgment of the European Court.

36533/04 Mesutoğlu, judgment of 14/10/2008, final on 14/01/2009
This case concerns the unfairness of certain administrative proceedings in that domestic courts interpreted provisions of the Code of Administrative Procedure in so excessively formalistic a way that the applicants were denied their right of access to a court (violation of Article 6§1).
In June 2000, the applicants sued the municipality of Elaziğ for damages before the first-instance court of that town, alleging the municipal authorities’ responsibility in relation to a traffic accident which caused the death of the father of one applicant and the son of the other.
In November 2000, the first-instance court declared that it was not competent to try the case ratione materiae and ordered the transfer of the dossier to the Malatya Administrative Court. However, in December 2002, the administrative court declared, at a late stage in the proceedings, that the applicant’s suit was inadmissible. It considered that Article 9 of the Code of Administrative Procedure did not provide that an administrative court might be seised of a case on the basis of the transfer of a dossier from a civil court following a conclusion of incompetence ratione materiae, and that the applicants should themselves have brought their appeal directly before the competent administrative court.
The European Court considered that such a strict interpretation of the provisions of the Code of Administrative Procedure had prevented the applicants from obtaining an examination of the merits of their case by a competent court and had denied them their right of access to justice.
Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage sustained.
Information is awaited as to whether it is possible to reopen the proceedings before the Malatya Administrative Court if the applicants so request.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations and on the dissemination of the European Court’s judgment to administrative courts and the Council of State.

The Deputies decided to resume consideration of this item at the latest their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual and general measures.

44088/04 Menemen Minibüsçüler Odası, judgment of 09/12/2008, final on 09/03/2009
This case concerns an unjustified interference in the right of access to a court of the applicant, a chamber of commerce engaged in private trade providing transport services for the public. The applicant was not informed when a competing co-operative appealed against administrative acts having an impact on its public transport activities. This was in spite of the wording of section 31 of the Code of Administrative Procedure which provides essentially that the judge must, ex officio, notify the introduction of administrative appeals to those to whom the matter at issue seems to present an interest.
The European Court found that the failure to comply with this provision had prevented the applicant from having a hearing in a matter concerning its rights and obligations (violation of Article 6§1).
Individual measures: The European Court rejected the applicant’s claim for just satisfaction in respect of pecuniary damage, considering that it could not speculate as to the outcome of the proceedings had the violation not occurred. The applicant made no claim in respect of non-pecuniary damage.
Information is awaited as to whether it is possible to reopen the proceedings before the İzmir Administrative Court if the applicant party so wishes.

General measures:
Information is awaited on measures taken or envisaged to avoid new, similar violations, as well as on the dissemination of the European Court’s judgment to administrative tribunals and the Council of State.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual and general measures.

18753/04 Tanay, judgment of 09/12/2008, final on 09/03/2009
This case concerns a violation of the applicant’s right of access to a court in civil proceedings to obtain an increase in the compensation in an expropriation case. In September 2000, the applicant’s counsel brought an action before a civil court seeking increased compensation. Despite the expiry of the statutory time-limit, the civil court accepted the case on grounds of a medical report of the Forensic medical institute confirming that counsel had had health problems preventing her from lodging the case earlier. In March 2003, the Court of Cassation quashed the decision, quoting the applicant's name, instead of that of his representative, as the person who had been ill. It stated that even if the applicant had been ill, his lawyer could have lodged the claim within the statutory time-limit. In May 2003, the Court of Cassation dismissed the applicant’s rectification request, holding that “amending the factual error would not affect the outcome”.
The European Court considered that in refusing to correct the factual error, the Court of Cassation had given no grounds to justify its decision and that correcting the factual error would have made a critical difference to the assessment of the applicant’s compliance with the domestic rules of procedure. It thus concluded that Court of Cassation’s unreasoned decision violated applicant’s right of access to court (violation of Article 6§1).
Individual measures: The European Court considered that the most appropriate form of redress would be to reopen the appeal proceedings, correcting the factual error, should the applicant so request. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Information is awaited on the possibilities of reopening the proceedings in the applicant’s case.
General measures:
Information is awaited on the publication of the European Court’s judgment and its dissemination, in particular to the Court of Cassation.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009), in the light of information to be provided on general and individual measures.

18384/04 Oral No. 2, judgment of 25/11/2008, final on 25/02/2009
This case concerns the unfairness of certain proceedings before the tax tribunal in that an expert report which was crucial to the outcome of the trial was not communicated to the applicant who was thus denied the possibility of making observations concerning the expert’s conclusions (violation of Article 6§1).
In January 2000, the applicant seised the tax tribunal to contest fiscal fines imposed upon him by the municipal authorities of Küçük Cekmece, contending, counter to the opinion of the municipality, that his earlier property tax declarations had been correct. The tribunal called for an expert report upon which its verdict was based but which was not disclosed to the applicant.
The European Court considered that the failure to disclose the expert report, which had a determining effect on the outcome of the proceedings, had placed the applicant in a situation of clear disadvantage as against the tax administration. It also considered that the inclusion of the report in the tax tribunal’s dossier was not a means of remedying the applicant’s situation.
Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage sustained. With regard to pecuniary damage, the Court held that it could not speculate as to the outcome of the proceedings had the violation not occurred.
Information is awaited as to whether it is possible to reopen the proceedings at issue before the tax tribunal.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations, and concerning the dissemination of the European Court’s judgment to tax tribunals.

The Deputies decided to resume consideration of this item at the latest their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual and general measures.

*37483/02 Erdagöz Güzel, judgment of 21/10/2008, final on 06/04/2009
The case concerns an infringement of the applicant’s right to respect of her private life due to the refusal by a domestic court by a judgment which was not based on any clearly established legislation or any sufficient and relevant reasoning, of an action for rectification of her name (violation of Article 8). The applicant brought an action for rectification of the spelling of her forename, asserting that she was called “Gözel”, not “Güzel”. The courts refused her application on the ground that the spelling which the applicant wished to use was based on the regional pronunciation of the word chosen as the name did not appear in the dictionary of the Turkish language.
The Court noted that, the domestic court mentioned neither a legal provision nor a conflict of public or private interest with the “legitimate interest” alleged by the applicant.
In the Court's opinion, Turkish law did not indicate with sufficient clarity the scope and manner of the discretionary power of authorities with respect to the restrictions on the rectification of names. Furthermore the legislation concerned did not offer adequate safeguards to prevent possible abuses in the exercise of such restrictions.
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained.
Information is awaited on measures taken or envisaged to allow the applicant to rectify her name as she wishes unless there are sufficient and relevant reasons for not doing so.
General measures:
Information is awaited:
- on the legislative framework applicable to the change of name, particularly the scope of the discretionary power of the authorities, and measures envisaged to be taken to prevent new, similar violations;
- on the publication of the judgment of the European Court and its wide dissemination to all competent authorities.

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 general measures.

2334/03 Kozacioğlu, judgment of 19/02/2009 – Grand Chamber
The case concerns unjustified interference in the right of the applicants (heirs of Mr Kozacıoğlu) to the peaceful enjoyment of their possessions, in that domestic law on the expropriation of cultural assets made it impossible to fix a reasonable amount of compensation in relation to the value of the property (violation of Article 1 of Protocol No. 1).
In November 1990, as part of a national heritage protection programme, a building belonging to Mr Ibrahim Kozacıoğlu (“the testator”) situated in Tarsus, was classified as a “cultural asset” due to its rarity and its architectural and historic interest. In April 2000 the building was expropriated and compensation paid to the testator on the date of transfer of the property. In proceedings brought by the testator to have the compensation increased, an expert panel considered that the architectural, historical and cultural characteristics of the building justified an increase of 100%. Additional compensation was therefore awarded to the testator by the first-instance court.
In November 2001 the Court of Cassation set aside the judgment at first instance, considering that a 100% increase in compensation could not be justifiable as, under the terms of Article 15.d of Law No. 2863 on the protection of the national heritage, considerations of architectural or historic interest of or rarity could not be taken into account in establishing the value of an asset.
The European Court found that the requirement of proportionality between deprivation of property and the aim of public utility rendered it essential to take account to a reasonable extent of certain specific characteristics (architectural, historic and cultural) of the property at issue in determining appropriate compensation. Thus the fact that the applicable domestic law categorically ruled out this possibility imposed an excessive and disproportionate burden on the applicants.
Individual measures: The European Court awarded the applicants just satisfaction in respect of pecuniary damage.
Assessment: no further individual measure seems necessary.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations.

The Deputies decided to resume consideration of this item at the latest their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

35785/03 Köktepe, judgment of 22/07/2008, final on 26/01/2009
1411/03 Turgut and others, judgment of 08/07/2008, final on 26/01/2009
These cases concern the violation of the applicants’ right to the peaceful enjoyment of their possessions in that they were not compensated for the cancellation of the inscription of their property in the land register. The domestic decisions to cancel the applicants’ property titles were based on the fact that the land at issue was designated public forest, which could not be the object of individual property title. The applicants sought in vain to obtain damages in respect of the prejudice occasioned by the loss of their property.
The European Court observed that the aim of depriving them of their property was related to a matter of public utility, namely the protection of nature, of the forest and of the environment in general. Thus it pursued a legitimate aim. However, the Court underlined that when the land was purchased, the land register contained no mention suggesting that the land was part of the public forest area and thus the applicants could have no knowledge of the designation of their land. The Court accordingly considered that the total absence of compensation, not justified by any exceptional circumstance, breached the necessary balance between the protection of private property and the general interest (violation of Article 1 of Protocol No. 1).
Individual measures: The Court reserved the application of Article 41 of the Convention.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations and on the dissemination of the European Court’s judgment to the competent authorities.

The Deputies decided:
1. 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 information to be provided on general measures;
2. to consider possible individual measures once the Court has pronounced on the application of Article 41.

9984/03 Kanbur No. 2, judgment of 14/10/2008, final on 14/01/2009
The case concerns the excessive length of criminal proceedings, in particular before the Ankara Martial Law Court (since abolished by a Law of 27/12/1993) and also partly before ordinary criminal courts (violation of Article 6§1).
This is the applicant’s second application before the European Court. His first application was concluded by a judgment of 30/10/2001 in which the Court had found that there had been a violation of Article 6§1 (application No. 28291/95, lodged on 21/07/1995). By then, the proceedings had lasted for over 19 years.
In the present application, the Court again found that there had been a violation of Article 6§1 on account of the excessive length of the proceedings which have continued for more than six years and ten months, for two levels of jurisdiction, since the Court’s earlier judgment. According to the information made available to the Court, the proceedings are still pending before the Court of Cassation.
The first case was closed by Final Resolution ResDH(2004)36 adopted by the Committee of Ministers on 15/06/2004 at the 885th meeting. The case was closed on the basis of the information provided by the Turkish authorities in their letters of 09/01/2003 and 14/11/2003 which stated that “a decision in the applicant’s case was reached by the Ankara 6th Assize Court on 16 July 2002, and the criminal proceedings against the applicant were completed”.
Individual measures: This case also presents similarities to the cases of Ertürk Hasan (5259/02), Kaya Mehmet (36150/02) and Çengelli and Eryılmaz (287/03) (see section 4.1).
Information is urgently awaited on the closure of the domestic proceedings in the applicant’s case.
General measures: This case presents similarities to other cases of excessive length of criminal proceedings before Martial Law Courts, such as that of Şahiner and others against Turkey, which was closed by Resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolition of these courts.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of the information to be provided on the individual measures.

- 4 cases against Ukraine

2440/07 Soldatenko, judgment of 23/10/2008, final on 23/01/2009
48068/06 Novik, judgment of 18/12/2008, final on 18/03/2009
The Soldatenko case concerns the possible extradition of the applicant to the Turkmenistan (which would be contrary to Article 3), the unlawfulness of his detention pending extradition (violation of Article 5§1) and the lack of judicial review of the detention pending extradition (violation of Article 5§4). It also concerns the lack of the effective remedies to challenge extradition (violation of Article 13).
The applicant, a Turkmen national, was arrested on 4/01/2007 in Ukraine and informed that his arrest had been made in accordance with an international search warrant issued by the Turkmen authorities. On 10/01/2007 a judge ordered the applicant’s detention pending extradition proceedings against him. No time-limit was set for the detention. On 30/01/2007 the Prosecutor General’s Office of Ukraine received a request for extradition from the Prosecutor General’s Office of Turkmenistan. On 16/01/2007 the European Court indicated interim measures under Rule 39 of the Rules of Court to the Ukrainian Government that the applicant should not be extradited to Turkmenistan pending the Court’s examination.
The Novik case also concerns the unlawfulness of detention pending extradition (violation of Article 5§1).
Individual measures:
1) Novik case: The applicant was freed and the Ukrainian authorities informed the requesting state (Belarus) that the applicant would not be extradited.
Assessment: no further individual measure seems necessary.
2) Soldatenko case: It appears that the applicant is still detained awaiting his extradition to Turkmenistan.
Information is urgently awaited on the present situation of the applicant.
General measures:
1) Unlawfulness of detention pending extradition and absence of judicial review: Under the 1993 Minsk Convention regulating legal assistance in criminal matters, to which both Ukraine and Turkmenistan are parties, a person may be detained with a view to extradition on the basis of a petition on behalf of one of the Contracting States even before receipt of an official extradition request. The European Court noted that even though the Minsk Convention, being part of the domestic legal order, was capable of serving as a legal basis for extradition proceedings and for detention with a view to extradition, Article 5§1(f) of the Convention further required that detention with a view to extradition should be effected “in accordance with a procedure prescribed by law”. Under Ukrainian law there were no specific legal provisions – either in the Code of Criminal Procedure or in any other legislative instrument – that provided, even by reference, a procedure for detention with a view to extradition.
Even though the Plenary Supreme Court had, by its 2004 resolution, advised lower courts to apply certain general provisions of the Code of Criminal Procedure to extradition proceedings, its resolutions did not have the force of law and were not legally binding on the courts and law-enforcement bodies involved in extradition proceedings. The European Court concluded that Ukrainian legislation did not provide a procedure that was sufficiently accessible, precise and foreseeable in its application as to avoid the risk of arbitrary detention pending extradition.
Information is awaited on legislative initiatives envisaged to prevent new, similar violations.
2) Extradition in circumstances in which the authorities must have been aware that the applicant faced a real risk of ill-treatment
Information is awaited on measures envisaged to ensure compliance by all relevant authorities, including domestic courts, with the requirements of Articles 3 and 13 in the framework of extradition procedures.
3) Publication and dissemination of the European court’s judgment
Information is awaited in this respect.

The Deputies decided to resume consideration of these items:
1. at their 1065th meeting (15-16 September 2009) (DH) in the light of information to be provided on individual measures;
2. at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH) in the light of information to be provided on general measures.

30663/04 Lutsenko, judgment of 18/12/2008, final on 18/03/2009
The case concerns a violation of the applicant’s right to a fair trial due to the use to a decisive degree by domestic courts of a statement given by an absentee co-accused, without procedural guarantees against self-incrimination (violation of Article 6§1).
Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained by the applicant.
Information is awaited as to whether the applicant may request the re-opening of proceedings following the European Court’s judgment.
General measures:
Information is awaited on the legislative framework concerning use of confessions at trial. Information is also awaited on publication and dissemination of the European Court’s judgment.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual and general measures.

39948/06 Saviny, judgment of 18/12/2008, final on 18/03/2009
The case concerns the violation of the right to respect for the family life of the applicants (husband and wife). The applicants have both been blind since childhood. They gave birth to seven children. Four of them were taken into public care in 1998. In 2006, pursuant to a court judgment, the remaining three children were also placed in public care. The decision to place children in public care was based on a finding that the applicants' lack of financial means and personal qualities endangered their children's life, health and moral upbringing.
The European Court found that placing the children in public care was not “necessary in a democratic society”. First, the European Court doubted the adequacy of the evidence on which the authorities had based their finding that the children's living conditions had in fact endangered their life and health. In particular, the custody proceedings instituted in January 2004 had not resulted in the children's removal from home until June 2006. No interim measure had been sought and no actual harm to the children during this period had been recorded. Secondly, the domestic courts appeared to have taken on trust the submissions by the municipal authorities, drawn from their occasional inspections of the applicants' dwelling. No other corroborating evidence, such as the children's own views, their medical files, opinions of their paediatricians or statements by neighbours, had been examined. Nor did the courts appear to have analysed in any depth the extent to which the purported inadequacies of the children's upbringing were attributable to the applicants' irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling.
Thirdly, the European Court noted that it was not its role to determine whether the promotion of family unity in the case entitled the applicants' family to a particular standard of living at public expense. It was, however, a matter which fell to be discussed, initially by the relevant public authorities and, subsequently in the course of the judicial proceedings. As regards the applicants' purported parental irresponsibility, the European Court emphasised that no independent evidence (such as an assessment by a psychologist) had been sought to evaluate the applicants' emotional or mental maturity or motivation in resolving their household difficulties. Nor had the courts examined the applicants' attempts to improve their situation, such as requests to equip their flat with access to natural gas and hot water, recoup salary arrears or request employment assistance. No data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. Soliciting specific information in this regard would have been pertinent in evaluating whether the authorities had discharged their obligation under the Convention to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents. Furthermore, at no stage of the proceedings had the children been heard by the judges. Moreover, not only had the children been separated from their family of origin, they had also been placed in different institutions.
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants.

Information is urgently awaited as to whether the applicants have contacts with their children and as to whether they may challenge the decision to place their children in public care.
General measures:
Information is awaited on measures taken or envisaged to prevent new, similar violations, in particular through dissemination of the European Court's judgment, possibly with a circular.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual and general measures.

- 1 case against the United Kingdom

3455/05 A. and others, judgment of 19/02/2009 – Grand Chamber
This case concerns the applicants’ certification by the UK authorities as “suspected international terrorists” their detention, and subsequent legal challenges to their certification and detention (violation of Articles 5§1, 5§4 and 5§5).
• Background: On 18/12/01 the United Kingdom lodged a derogation pursuant to Article 15 of the European Convention with the Secretary General of the Council of Europe in respect of Part 4 of the Anti-Terrorism Crime and Security Act 2001 (the 2001 Act). The derogation was made on the basis that there was a public emergency in the United Kingdom and stated that the provisions in Part 4 of the 2001 Act may be inconsistent with Article 5§1. In 2001 the applicants were certified by the United Kingdom authorities under Part 4 of the 2001 Act as “suspected international terrorists” and consequently detained. They challenged their certification and detention in the Special Immigration Appeals Commission (SIAC) and on appeal to the House of Lords.
• Derogation from Article 5§1 under Article 15 of the European Convention: The European Court first considered the validity of the United Kingdom’s derogation from Article 5§1, under Article 15 of the European Convention. The Court concluded that the derogation was valid, as at the time there was a public emergency threatening the life of the nation (§181).
• Violation of Article 5§1: The Court then went on to consider whether the measures made pursuant to that derogation (i.e. Part 4 of the 2001 Act) derogated “only to the extent strictly required by the exigencies of the situation” (§182). The Court found that the measures under which the applicants were detained were “disproportionate in that they discriminated unjustifiably between nationals and non-nationals” (§190). There was therefore a violation of Article 5§1.
• Violation of Article 5§4: The applicants’ certification and detention was considered before the SIAC courts, which use a system of “closed evidence” and “special advocates” to consider evidence related to national security issues (see §§91-93).
The European Court found that given the applicants’ lengthy and, at the time, possibly indefinite detention, the proceedings before the SIAC needed to include certain guarantees. The Court found that those guarantees were absent in proceedings against four of the applicants where those applicants were unable to respond to allegations against them: such allegations being general assertions or contained entirely in closed evidence unavailable to the applicants or their counsel (violation of Article 5§4).
• Violation of Article 5§5: Lastly, the European Court found a violation of Article 5§5 as the violations found could not give rise to an enforceable claim for compensation before national courts.
Individual measures: The European Court awarded just satisfaction for non-pecuniary damage to all eleven applicants, save the second and fourth.
Initially, all the applicants were detained in a high-security prison. As none of them were United Kingdom nationals, they could opt under the 2001 Act to leave the country at any time. The second and fourth applicants thus elected to leave the United Kingdom in 2001 and 2002 respectively.
On 11/03/05, the other applicants were released and then immediately made subject to control orders under the Prevention of Terrorism Act 2005 (see General Measures below).
On 11/08/05 the United Kingdom authorities served Notices of Intention to Deport on applicants numbered 5-11, following assurances from the Algerian and Jordanian governments that the applicants would not be ill-treated on return. A number of the applicants appealed their deportation.

• Information on the current status of the applicants was provided by the United Kingdom authorities on 06/04/2009. This information is being assessed.
General measures:
1) Derogation under Article 15 of the European Convention: The United Kingdom authorities withdrew the notice of derogation on 16/03/05.
2) Violation of Article 5§1: Part 4 of the 2001 Act was repealed and replaced with a regime of control orders under the Prevention of Terrorism Act 2005 (the 2005 Act), which came into force on 11/03/2005. The control order regime under the 2005 Act operates regardless of nationality (§83).
Sections 1-9 of the 2005 Act which set out to the control order regime, remain in force for one year at a time and are then subject to renewal by Parliament. On 05/03/09 Parliament voted to renew the powers under the 2005 Act for a further year, from 11/03/09 – 11/03/10.
3) Violation of Article 5§4: The SIAC was set up by the Special Appeals Commission Act 1997. Although Part 4 of the 2001 Act has been repealed, the SIAC continues to deal with cases where the Secretary of State for the Home Department seeks to deport or exclude individuals from the United Kingdom on national security or other public interest grounds.
• Information on the general measures was provided by the United Kingdom authorities on 06/04/2009. This is being assessed.

The Deputies decided to resume consideration of this case at their 1065th meeting (15-16 September 2009) (DH), in the light of the information provided by the authorities on the individual and general measures.

1 Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 1059th 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.


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