Ministers’ Deputies
Agenda

CM/Del/OJ/DH(2009)1065 Section 2.1 PUBLIC .. .. 30 September 2009

———————————————

1065th meeting (DH), 15-16 September 2009

- Annotated Agenda1
- Decisions

Section 2.1

Public information version

——————————————

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

For each case or group of cases, the Deputies adopted the decision presented in a ruled box.

In cases in which the measures have already been taken in response to earlier judgments raising similar issues or in cases in which the European Court has ordered specific measures, this will be indicated.
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.

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:

Michael Theodossiou LtD against Cyprus (31811/04) (reserved)
Grifthorst against France (28336/02) (reserved)
Faure against France (19421/04)
Jgarkava against Georgia (7932/03)
Kaźmierczack against Poland (4317/04)
Rybacki against Poland (52479/99)
Czarnowski against Poland (28586/03)
Gagiu against Romania (63258/00)
Mirilashvili against the Russian Federation (*6293/04)
Kazakov against the Russian Federation (*1758/02)
Aleksanyan against the Russian Federation (*46468/06)
Shabelnik against Ukraine (16404/03)
Bullen and Soneji against the United Kingdom (3383/06)

The Deputies decided in particular to resume consideration of these items at their 1072nd meeting (December 2009) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary.

- 1 case against Albania

19206/05 Dauti, judgment of 03/02/2009, final on 03/05/2009
This case concerns a breach of the right of access to a court in proceedings brought to challenge administrative decisions concerning the award of invalidity benefits to the applicant (violation of Article 6§1).
The European Court found in particular that the Commission of appeal on medical examinations regarding the capacity to work had not constituted an “independent and impartial tribunal” and that its decisions, according to the legislation in force at the material time, could not be challenged before domestic courts.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 3 cases against Armenia

31237/03 Kirakosyan, judgment of 02/12/2008, final on 04/05/2009
22390/05 Mkhitaryan, judgment of 02/12/2008, final on 04/05/2009
41698/04 Tadevosyan, judgment of 02/12/2008, final on 04/05/2009
These cases concern degrading treatment suffered by the applicants due to their detention conditions in March 2003 (Kirakosyan and Mkhitaryan) or May 2004 (Tadevosyan). They were each sentenced to ten days’ administrative detention for disobeying the lawful orders of police officers and for using obscene language (violation of Article 3).
It may also be noted that, in its analysis of the non-exhaustion of domestic remedies regarding the complaint under Article 3, the Court stated that section 13 of the Law on holding conditions for arrestees and detainees could not be considered an effective remedy, not least because the government had failed to specify to which of the many authorities mentioned applicants were supposed to apply.
These cases also concern violations of the right to a fair trial and in particular the right to adequate time and facilities for the preparation of their defence, in that the applicants were convicted a few hours after their arrests without any contact with the outside world (violation of Article 6§3b combined with Article 6§1). Finally, the case concerns a breach of the right of appeal in criminal matters as the Code of Administrative Offences provides no clear and accessible right to appeal (violation of Article 2 of Protocol No. 7).

The Deputies decided to resume consideration of these items at their at their DH meeting of March 2010, in the light of the action plan / action report to be provided by the authorities.

- 3 cases against Austria

49686/99 Gütl, judgment of 12/03/2009, final on 12/06/2009
28648/03 Lang, judgment of 19/03/2009, final on 19/06/2009
42967/98 Löffelmann, judgment of 12/03/2009, final on 12/06/2009
The cases concern a discriminatory breach of the applicant’s religious freedom due to the application of legal provisions concerning the exemption from the obligation to perform military service or civilian service (violations of Article 14 in conjunction with Article 9).
The applicants are members of the Religionsgemeinschaft der Zeugen Jehovahs, a religious community (Bekenntnisgemeinschaft) at the time. Between 1994 and 2000 they were drafted to perform military service or alternative civilian service.
The Austrian authorities rejected their objection that, within their religious community, they performed comparable functions to those members of recognised religious societies (anerkannte Religionsgesellschaften) who were dispensed from military or civilian service under Section 24(3) of the Military Service Act and Section 13a (1) of the Civilian Service Act.

Mr Gütl and Mr Löffelmann performed their civilian service between 1/07/1998 and 30/06/1999, and from 1/02/1999 to 31/01/2000, respectively. Pursuant to an instruction issued by the Ministry of Defence, Mr Lang was not called up to perform military service following his application to the European Court on 26/08/2003.
The European Court, referring to its analysis in the case of Religionsgemeinschaft der Zeugen Jehovahs and others (40825/98; 1072nd meeting, December 2009), found the above-mentioned provisions to be discriminatory as the exemption from the obligation to perform military or civilian service relied exclusively on membership of a recognised religious society.

The Deputies decided to resume consideration of these items at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 4 cases against Belgium

44256/06 Cakir Turan, judgment of 10/03/2009, final on 10/06/2009
This case concerns ill-treatment inflicted on the applicant by the police during his arrest and whilst in police custody (violation of Article 3 in its material part) and the ineffectiveness of the investigation conducted into the incident (violation of Article 3 in its procedural part).
The European Court also found that the Belgian authorities had not taken all necessary measures to find out whether the police officers’ conduct had been discriminatory (violation of Article 3 in its procedural part, in conjunction with Article 14).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

45413/07 Anakomba Yula, judgment of 10/03/2009, final on 10/06/2009
The case concerns the refusal of legal aid by a Belgian court in proceedings brought by the applicant because she was not regularly resident on Belgian territory.
Given the importance of the question at issue (the paternity of a child) and the steps taken by the applicant to regularise her situation, the European Court considered that the state had failed in its obligation to regulate the right of access to a court in a manner compatible with the requirements of Article 6§1, taken together with Article 14.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

49230/07 L’Erablière A.S.B.L., judgment of 24/02/2009, final on 24/05/2009
This case concerns a disproportionate limitation of the right of access to a court imposed on the applicant association in relation with its request before the Conseil d’Etat to have a planning permission stayed. Their application was declared inadmissible in 2007 on the grounds that it did not include a statement of the facts of the case (violation of Article 6§1).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

22945/07 Houtman and Meeus, judgment of 17/03/2009, final on 17/06/2009
The case concerns the violation of the applicants’ right to compensation in respect of the first applicant’s unlawful psychiatric confinement at a doctors’ initiative (violation of Article 5§5).
The European Court considered that in refusing to compensate the applicants whilst acknowledging the unlawfulness of the first applicant’s confinement, the Belgian courts had not applied and interpreted domestic law in the spirit of article 5§1.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 3 cases against Bulgaria

*412/03+ Holy synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and others, judgment of 22/01/2009, final on 05/06/2009
This case concerns unjustified interference in the organisational autonomy of the Bulgarian Orthodox Church by the authorities by way of certain provisions of the Religious Denominations Act 2002 and their implementation, forcing this religious community to unite under one of two leaderships at a time when there was deep and genuine division in the Bulgarian Orthodox Church (violation of Article 9, interpreted in the light of Article 11).
The European Court held that the question of the application of Article 41 (just satisfaction) was not ready for decision as to pecuniary and non-pecuniary damage.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

3991/03 "Bulves" Ad, judgment of 22/01/2009, final on 22/04/2009
The case concerns the violation of the applicant company’s right to the peaceful enjoyment of its possessions due to the refusal by the Bulgarian authorities in 2001 to allow it to deduct input VAT it had paid to its supplier whohad been late in complying with its own VAT reporting obligations (violation of Article 1 of Protocol No. 1).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

75022/01 Popov Petyo, judgment of 22/01/2009, final on 22/04/2009
The case concerns the unfairness of criminal proceedings brought against the applicant, in that he was not informed of the date of the hearing before the Supreme Court of Cassation (violation of Article 6§1).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 4 cases against Croatia

46598/06 Tomašić Branko and others, judgment of 15/01/2009, final on 15/04/2009
The case concerns the authorities’ failure in their obligation to take all reasonable steps to protect the lives of the applicants’ relatives from a person who had previously been convicted of threatening to kill them (violation of Article 2 in its substantive aspect).
The European Court noted that the findings of the domestic courts and the conclusions of the psychiatric examination undoubtedly showed that the authorities had been aware that the threats made against the applicants’ relatives were serious and that all reasonable steps should have been taken to protect them. It further observed several shortcomings in the authorities’ conduct: no search of the perpetrator’s premises or vehicle had been carried out during the initial criminal proceedings against him even though he had repeatedly threatened to use a bomb. In addition, although the psychiatric report drawn up for the purposes of the criminal proceedings had stressed the need for continued psychiatric treatment, the authorities had failed to prove that such treatment was actually and properly administered. Finally, the perpetrator was not examined prior to his release from prison to assess whether he still posed a risk to the applicants’ relatives.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

*28261/06 Ćosić, judgment of 15/01/2009, final on 05/06/2009
The case concerns the lack of procedural safeguards in proceedings for eviction of the applicant even though she had nowhere else to live (violation of Article 8).
The European Court noted that the domestic courts’ findings were limited to the conclusion that under applicable law the applicant had lost all legal entitlement to occupy the flat and that she therefore had to vacate it. While recognising the applicant’s difficult situation, the domestic courts thus failed to analyse the proportionality of the measure to be applied against the applicant despite their duty not to interpret or apply the provisions of domestic law in a manner incompatible with the obligations flowing from the European Convention.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

9702/04 Gabrić, judgment of 05/02/2009, final on 05/05/2009
The case concerns a disproportionate interference in the applicant’s right to the peaceful enjoyment of his possessions in that the customs authorities, during a border control in January 2002, in addition to fining him for failing to declare foreign currency in his possession, confiscated the sums concerned (violation of Article 1 of Protocol No. 1).
The European Court noted that the applicant had already been fined by customs for failing to declare the money and considered the fine to have been a sufficient sanction to prevent future breaches of the national legal requirement to declare currency carried across borders.

The Deputies decided to resume consideration of this item at the latest at their DH meeting in June 2010, in the light of an action plan / action report to be provided by the Croatian authorities.

22330/05 Olujić, judgment of 05/02/2009, final on 05/05/2009
The case concerns various breaches of the right to a fair trial in the context of the disciplinary proceedings against the applicant, a judge and the President of the Supreme Court, before the National Judicial Council (NJC).
The European Court first noted lack of objective impartiality of three members of the NJC in that during the disciplinary proceedings against the applicant they expressed bias against the applicant in interviews published in two different national newspapers (violation of Article 6§1).
The case also concerns the unjustified exclusion of the public from the proceedings before the NJC on the ground that it was necessary to protect the dignity of both the applicant personally and the judiciary as a whole (violation of Article 6§1). In this context the European Court noted that the applicant himself had asked for the proceedings to be held in public. Moreover, given that the proceedings concerned such a prominent public figure and that public allegations had already been made suggesting that the case against him was politically motivated, it was evidently in the interest of both the applicant and the general public for the proceedings before the NJC to be open to public scrutiny.
The case further concerns inequality of arms: the NJC had justified its refusal to hear evidence from any of the applicant’s by stating that the circumstances referred to in the evidence on which he relied had already been established (violation of Article 6§1). In this context the European Court considered that the evidence of the witnesses concerned had been relevant to the applicant’s case in that it could have been likely to support his line of defence. Moreover, the reasons relied on by the NJC had not been sufficient to justify the refusal to hear any of the witnesses called on behalf of the applicant, which ultimately limited his ability to present his case in a manner compatible with the guarantees of a fair trial.
Finally, the case concerns the excessive length of proceedings which began in 1996 and ended with the Constitutional Court’s decision of 9/12/2004 (violation of Article 6§1).

The Deputies decided to resume consideration of this item at the latest at their DH meeting in June 2010, in the light of an action plan / action report to be provided by the authorities.

- 1 case against Cyprus

31811/04 Michael Theodossiou LtD, judgment of 15/01/2009, final on 15/04/2009
This case concerns the excessive length of compensation proceedings for expropriation of the applicant’s property (around 11 years, 7 months before two degrees of jurisdiction) (violation of Article 6§1).
It also concerns a disproportionate interference with the applicant’s right to the peaceful enjoyment of its possessions due to the excessive delay between service of an compulsory acquisition order (1972) and the actual payment of compensation (1995) (violation of Article 1 of Protocol No. 1).
The European Court considered that the domestic legal provision, under which the valuation of expropriated property should correspond to the market value at the date of service of the compulsory acquisition order, was not in principle contrary to its jurisprudence on Article 1 of Protocol No. 1 (§81). However, in this case the amount paid in compensation 23 years after publication of the order, was approximately one tenth of the market value of the property. Noting that the applicable law made no provision for exceptions in cases of excessively lengthy compensation proceedings, the Court found that in such circumstances the amount of compensation did not correspond to the value of the property at issue.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 1 case against Denmark

247/07 Christensen, judgment of 22/01/2009, final on 22/04/2009
The case concerns the excessive length of civil proceedings (violation of Articles 6§1).
The proceedings began on 28/06/1995, when the applicant, alleging medical malpractice, instituted civil proceedings against a medical consultant who had performed two cystoscopic examinations in 1992. They ended on 15/06/2006 with the Supreme Court’s judgment dismissing her claim (almost 11 years at two levels of jurisdiction).
The case also concerns the absence of any effective remedy at the applicant’s disposal against the excessive length of the proceedings (violation of Article 13).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 2 cases against Finland

22635/04 Vilén, judgment of 17/02/2009, final on 17/05/2009
The case concerns the unfairness of insurance proceedings with regard to sickness benefits of the applicant, who was denied the opportunity to comment on several medical opinions included in his case file between 2002 and 2003. The European Court concluded that the applicant had therefore not been able to participate properly in the proceedings (violation of Article 6§1).
The facts of the case occurred after the adoption and publication of the K.P. judgment (No. 31764/96, judgment of 31/05/2001, closed by the Resolution ResDH(2006)59, adopted on 02/11/2006), and similar cases which have since been submitted to the Committee of Ministers seem to indicate that the problem persists in judicial practice.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

*21022/04 Natunen, judgment of 31/03/2009, final on 30/06/2009
The case concerns the unfairness of criminal proceedings instituted against the applicant in 2001, as at the pre-trial stage the police destroyed recordings obtained through telephone surveillance. In fact, according to the Coercive Measures Act in force at the material time, the police were obliged to destroy these items, which they did not consider pertinent to the offence being investigated.
The European Court noted that the decision to destroy the recordings had been made without providing the defence with the opportunity to participate in the decision to do so and without giving the courts the possibility of assessing their relevance. Their destruction had been a direct result of the application of the relevant domestic legislation in force at the time, which was defective, as it allowed information supporting the innocence of the suspect to be destroyed before the case had been decided (violation of Article 6§1 taken together with Article 6§3(b)).

The Deputies decided to resume consideration of this item at the latest at their at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 4 cases against France

19421/04 Faure, judgment of 15/01/2009, final on 15/04/2009
This case concerns the violation of the applicant’s right to liberty and security, in that his arrest and detention were not carried out in accordance with a procedure prescribed by law (violation of Article 5§1).
The European Court found that the detention order enforced between 15/05/2003 and 29/10/2003, had been issued by the Aude Assize Court, whereas at the time the Code of Criminal Procedure reserved the right to issue such detention orders only to investigating courts. In the absence of relevant Cour de Cassation case-law on this question, the European Court concluded that the Assize Court’s decision to issue a detention order against the applicant was not based on a law which could be described as sufficiently accessible and precise to avoid any risk of an arbitrary decision.
Individual measures: The detention complained of ended on 29/10/2003 and he is currently detained following his conviction on 29/10/2003.
Given the particular nature of the case, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction in respect of the non-pecuniary damage sustained by the applicant.
Assessment: No further individual measure therefore seems necessary.
General measures: The European Court noted (§§43-44) that the specific circumstances of the case which had given rise to the problem had manifestly not been envisaged by the legislator before the law n°2004-204 of 09/03/2004. This law created a new procedure of "le défaut criminel” ( to replace proceedings in absentia) in which the detention order ceased to be and Assize courts were given the right to issue arrest warrants, which now allow the detention of the accused. This change in the law should avoid other similar violations.
Moreover, the judgment of the European Court was published and disseminated by the French authorities in the usual way.

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 at their 1072nd meeting (December 2009) (DH), with a view to examining the possibility of closing this case.

36497/05+ Ligue du monde islamique and Organisation islamique mondiale du secours, judgment of 15/01/2009, final on 15/04/2009
This case concerns a restriction on the applicant organisations’ right of access of to a court which was not sufficiently predictable (violation of Article 6§1), the French courts having declared their complaints of defamation inadmissible on the ground that they had not completed the necessary formalities to bring suit in France.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

24488/04 Guillard, judgment of 15/01/2009, final on 15/04/2009
This case concerns the violation of the applicant's right of access to a court on account of the narrow interpretation by the Conseil d'Etat of the conditions for abandonment of proceedings: the Conseil d'Etat wrongly deduced from wording used by the applicant that he intended to submit additional pleadings and, upon his failing to do so, declared that he had automatically abandoned the proceedings (violation of Article 6§1).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

28336/02 Grifthorst, judgment of 26/02/2009, final on 26/05/2009
The case concerns the violation of the applicant's right to the peaceful enjoyment of his possessions due to the disproportionate nature of the penalty imposed on him (confiscation and fine) for failing to declare a sum of money to the customs authorities pursuant to Article 465 of the Customs Code in force at the material time (violation of Article 1 of Protocol No. 1).
Individual measures: The European Court reserved the application of Article 41.
General measures: As redrafted (in force as from 01/10/2004), Article 465 of the Customs Code no longer provides automatic confiscation, and the maximum possible fine has been reduced to a quarter of the sum constituting the offence. Undeclared sums are now frozen for a maximum of six months during which confiscation may be pronounced where there is plausible indication or reason to believe that the person concerned may have committed other offences.
The European Court took the view that such a system was likely to maintain the just balance between the requirements of the general interest and the protection of individuals’ fundamental rights (§103).
It is to be noted that the French authorities systematically publish the European Court’s judgments and disseminate them to the authorities concerned.

The Deputies decided to resume examination of this item once the European Court has rendered judgment on just satisfaction.

- 7 cases against Georgia

9870/07 Poghossian, judgment of 24/02/2009, final on 24/05/2009
23204/07 Ghavtadze, judgment of 03/03/2009, final on 03/06/2009
These cases both concern the authorities’ failure in their obligation to provide appropriate medical treatment to detainees, amounting to degrading treatment (violations of Article 3).
In both cases the applicants received no medical treatment for hepatitis C whilst in the Ghavtadze case, the applicant was also suffering from tubercular pleurisy.
Furthermore, noting that almost forty applications concerning the lack of medical care in Georgian prisons were now pending before it, the Court found that there was a systemic problem concerning the administration of adequate medical care to prisoners infected, inter alia, with viral hepatitis C. It considered this to be an aggravating factor in respect of Georgia’s responsibility under the Convention, but also a threat to the effectiveness of the Convention system. Consequently, it invited Georgia to take legislative and administrative steps without delay to prevent the transmission of viral hepatitis C in prisons, to introduce screening arrangements for this disease and to ensure its timely and effective treatment.
Individual measures:
1) Poghossian case: As the applicant submitted no claim for just satisfaction within the required time, the Court held that there was no need to make an award under Article 41. Moreover, the applicant has served his unconditional prison sentence and was therefore released on 5/12/2008.
2) Ghavtadze case of: The Court stated that in this case the very nature of the violation found left no real choice as to the measures required to remedy it. Thus, given the particular circumstances of the case, the Court considered that the respondent state must guarantee, at the earliest possible date, the admission of the applicant to a hospital able to provide him with adequate medical treatment for his viral hepatitis C and tubercular pleurisy.
The Court awarded the applicant just satisfaction in respect of both pecuniary and non-pecuniary damage.

• Information provided by the Georgian authorities: On 3/04/2009, the Head of the Department of State Representation before International Courts (Ministry of Justice) wrote to the Head of the Prisons Department (The Ministry of Penitentiary, Probation and Legal Aid Issues) drawing his attention to the Court’s judgment, asking him to take the measures required by the Court’s judgment and recalling the binding nature of European Court judgments. On 18/06/2009, the Head of Department of the State Representation before International Courts sent another letter to the Head of the Prisons Department inquiring about the specific issues concerning the applicant (see reply below) and drawing attention to the conclusions of the Court that there was a systemic problem concerning the administration of adequate medical care to prisoners infected, inter alia, with viral hepatitis C (see reply on this point under General measures).
In reply, the prison services indicated that the applicant had been admitted to the Department of infectious diseases of the penitentiary hospital on 23/04/2007 and is being treated there. Upon arrival, the applicant underwent medical tests and a diagnosis was made (exudative pleurisy and acute type C hepatitis). The applicant received treatment against tuberculosis and, when his state of health permitted it, he was also treated against hepatitis C. Furthermore he is seeing a psychiatrist. The tuberculosis treatment ended on 13/04/2009, and the applicant was offered treatment against Hepatitis C. He first refused this treatment, arguing that he had to be psychologically prepared. When he was last offered the treatment on 18/06/2009, he refused to start treatment immediately and indicated that he would start treatment on 2/07/2009.
General measures:
1) Poghossian case: The Court pointed out that under Article 3 of the Convention it was not enough to have the applicant examined and a diagnosis made. To protect a prisoner’s health, it was essential to provide treatment corresponding to the diagnosis, as well as proper medical supervision. The Court accordingly found it unacceptable that the applicant’s repeated requests for adequate and effective treatment had been left unanswered or ignored.
2) Ghavtadze case: The Court noted that the applicant had been hospitalised twice and sent back to prison without medical authorisation. The Court found that it is not compatible with Article 3 of the Convention that prisoners are only hospitalised when symptoms reach their height and then sent back, without having recovered, to a prison where they cannot benefit from care. The Court therefore stated that the withdrawals of the applicant from the penitentiary hospital (on 10/02 and 31/03/2007) were not in conformity with this provision.
• Information provided by the Georgian authorities: On 25/06/2009, the Ministry of Corrections, Probation and Legal Assistance and the Ministry of Health and Social protection issued an order concerning a strategy for medical treatment of prisoners infected with hepatitis C. This strategy provides:
- the improvement of the level and quality of information given to penitentiary staff and to prisoners on hepatitis C;
- the study of the epidemic situation in prisons (medical examination and test for each new prisoner and for each person already in detention);
- placement in a specialised institution of sick prisoners who accept medical treatment after being informed of the side effects;
- implementation and the follow-up of treatment; maintenance of a medical file given to prisoners on recovery.

An action plan implementing this strategy is currently being prepared.

The Deputies,
1. recalled the general obligation on respondent states to take, in all cases, under the Committee of Ministers’ supervision, the individual and/or general measures needed to erase, as far as possible, the consequences of the violations for the applicants and avoid other similar violations;
2. noted, in relation to individual measures, that in the Ghavtadze case in which the applicant remains in prison, the Court specified the necessary measures that had to be taken in ordering the respondent state “to guarantee, at the earliest possible date, the applicant’s admission to a hospital able to provide him with appropriate medical care for his viral hepatitis C in conjunction with the tubercular pleurisy from which he also suffers”;
3. noted in this respect that the Georgian authorities provided information on the developments in the applicant’s state of health, and on the improvements of the infrastructure of the penitentiary hospital and invited the Georgian authorities to specify to what extent these developments ensure the requirements of individual measures as stated above;
4. noted that no questions relating to individual measures need to be raised by the Committee of Ministers in the Poghossian case, especially in view of the fact that the applicant was released in December 2008 and did not submit a claim for just satisfaction before the Court;
5. recalling, in relation to the general measures, that the Court, on the basis of the Committee of Ministers’ Resolution of 12 May 2004 (Res(2004)3) on judgments revealing an underlying systemic problem, indicated in these two cases the existence of such problems in relation to medical treatment in detention in Georgia, and in particular, in relation to the proper medical treatment of detainees suffering from hepatitis C and other contagious illnesses;
6. noted with the Court that general measures, legislative and administrative must be adopted rapidly to prevent the transmission of contagious illnesses in the Georgian penitentiary system, to set up a screening system on admission of detainees to prison and to guarantee the treatment of these illnesses in a speedy and effective way and in appropriate conditions;
7. noted in this respect the information provided by the Georgian authorities on the strategy for medical treatment of prisoners infected with hepatitis C, adopted on 25/06/2009 by the Ministry of Corrections, Probation and Legal Assistance and the Ministry of Health and Social protection;
8. invited the authorities to present promptly a detailed action plan on the general measures taken and envisaged to address the structural problem identified regarding the quality of medical treatment in detention and to ensure that detainees placed in hospital cannot be removed without the express authorisation of the doctor in charge; and reiterated in this context the importance of guaranteeing an effective remedy within the meaning of the Convention;
9. invited the authorities, when drafting this action plan, to take especially into account the European rules drawn up on this subject and of all the relevant recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT);
10. decided to resume consideration of this item at their 1072nd meeting (December 2009) (DH), in the light of updated information on the applicant’s situation in the Ghavtadze case and the action plan awaited from the Georgian authorities in relation to the general measures.

1704/06 Ramishvili and Kokhreidze, judgment of 27/01/2009, final on 27/04/2009
The case concerns the inhuman and degrading conditions in which the first applicant was detained in a punishment cell at Tbilisi No. 5 Prison (violation of Article 3), the second applicant’s detention in an overcrowded cell at Tbilisi No. 5 Prison; (violation of Article 3), as well as the inhuman and degrading conditions (applicants’ placement in a metal cage during the court hearing, presence of “special forces” in the courthouse) in which the hearing of 2/09/2005, at which the applicants contested their detention on remand was conducted (violation of Article 3).
The case also concerns a violation of the right to liberty and security (violation of Article 5§1 c) due to the absence of a valid court order authorising the applicants’ detention between 27/11/2005 and 13/01/2006.
Lastly, the case concerns the unfair manner in which the judicial review of the applicants' detention on remand was conducted on 2/09/2005 (violation of Article 5§4) and the failure to give a prompt reply to the applicants’ complaint of 6/12/2005 of the illegality of their detention (violation of Article 5§4).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

522/04 Aliev, judgment of 13/01/2009, final on 13/04/2009
The case concerns the inhuman and degrading conditions under which the first applicant was detained, from May 2002 to January 2005, at Tbilisi No. 5 Prison (violation of Article 3).
The case also concerns the absence of investigation of the proportionality of the force used by state agents against the applicant during a riot during the night of 3 to 4 October in the cell the applicant shared with 15 other prisoners (violation of Article 3).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

37048/04 Nikolaishvili Giorgi, judgment of 13/01/2009, final on 13/04/2009
The case concerns several breaches of the applicant’s right to liberty and security on account of
- his arrest on 30/03/2004, for reasons other than those laid down in sub-paragraph (c) of Article 5§1 of the Convention (the applicant was arrested when he was summonsed to testify in a murder case in which his brother was a suspect, in fact in order to facilitate the inquiry against his brother) (violation of Article 5§1) ;
- his detention on remand from 30/03/2004 to 24/01/2005 without a valid court order authorising this detention (violation of Article 5§1c ) ;
- the lack of sufficient reasons for his detention on remand (violation of Article 5 § 3),
- he failure to respect the adversarial nature of proceedings and equality of arms during the judicial review of his detention on 24/01/2005, because of the absence of hearing (violation of Article 5§4).
Lastly, the case concerns an infringement of the applicant’s right to private life due to the public posting at various police stations of the applicant’s photograph as a “wanted person” (violation of Article 8) .
The European Court pointed out that, once disclosures of a private nature inconsistent with Article 8 of the Convention have taken place, the positive obligation inherent in ensuring respect for private life entails an obligation to carry out effective inquiries in order to rectify the matter as far as possible. The Court noted that in this case despite the respondent government's recognition of the “error” before the Court, the competent national authorities have never identified or punished the state agents responsible.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of the action plan / action report to be provided by the authorities.

7932/03 Jgarkava, judgment of 24/02/2009, final on 24/05/2009
The case concerns a breach of the applicant’s right to a fair trial due to the Supreme Court’s dismissal of the applicant’s claim for compensation following detention on remand, on unclear and insufficient grounds (violation of Article 6§1).
The applicant was charged with extortion and detained on remand for 7 months and 8 days in 1995 – 1996. He was released on bail in February 1996 for health reasons. On 20/07/1998, the criminal proceedings against him were dropped for “lack of evidence of guilt “. The criminal proceedings against the applicant had been based upon the Code of criminal procedure as in force until 15/05/1999, which provided no right to compensation for persons acquitted or not charged. The applicant’s claim relied on the new Code of criminal procedure, which was in force at the time he lodged his request (June 2000). The new Code dispensed with the notion of dismissal for lack of evidence of guilt but took into consideration the status of “rehabilitated person”.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

41957/04 Kharitonashvili, judgment of 10/02/2009, final on 10/05/2009
The case concerns the excessive length of certain civil proceedings regarding an eviction (violation of Article 6§1). More than eight years and eleven months elapsed without the first- instance court having addressed the merits of the case and the proceedings were still pending before the Tbilisi City Court when the European Court gave its judgment.
The European Court considered that the main problem in the present case is the domestic courts' failure to take effective steps to discipline the parties and ensure the well-organised conduct of the proceedings.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 1 case against Germany

45749/06+ Kaemena and Thöneböhn, judgment of 22/01/2009, final on 22/04/2009
The case concerns the excessive length of criminal proceedings against the applicants (violation of Article 6§1).
The applicants were convicted of murder in joint criminal proceedings, which started on 9/05/1996 and ended on 5/07/2006 with the service of the judgment imposing a life sentence. The proceedings thus lasted 10 years and almost 2 months.
Moreover, the European Court considered that, in the particular circumstances of their cases, the applicants had not had at their disposal an effective remedy capable of affording redress for a violation of the reasonable time requirement (violation of Article 13).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 3 cases against Greece

1234/05 Reklos and Davourlis, judgment of 15/01/2009, final on 15/04/2009
This case concerns the violation of the applicants’ right to respect for their private live due to the dismissal of their suit for damages related to photographs taken without their consent in the sterile unit of a private clinic of their newborn child, as part of a photographic service offered to clients (violation of Article 8). The European Court noted in particular that the courts had taken no account of the facts that the photographs had been taken without the parents’ consent and that the photographer had been able to keep the negatives, which might thus have been used subsequently without the parents’ consent.
The case also concerns the violation of the applicants’ right of access to a court due to the vague reasoning of the dismissal of their application to appeal on points of law (violation of Article 6§1).
The Court considered that to declare the applicants’ sole means of appeal inadmissible merely on the ground that they had not indicated in their application the factual circumstances relied on by the appellate court to dismiss their appeal, was indicative of an excessively formalistic approach which denied them the possibility of obtaining an examination of their allegations by the Court of Cassation.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

42778/05+ Giosakis No 1, judgment of 12/02/2009, final on 12/05/2009
36205/06 Giosakis No 2, judgment of 12/02/2009, final on 12/05/2009
These cases concern the violation of the principle of equality of arms in proceedings in 2005 before the chamber of indictment concerning the remand of the applicant in custody (Giosakis No. 1) and the extension of the remand in 2006 (Giosakis No. 2) in that the applicant had been denied the right to appear whilst the prosecutor was granted a hearing (violations of Article 5§4).
The European Court recalled its case-law concerning proceedings before the chamber of indictment (Kampanis judgment of 13/07/1995 and Kotsarides judgment of 23/09/2004, which led a reform of indictment proceedings (see Resolution ResDH(2006)54). The Court found that, in denying the applicant’s request to appear, the chamber of indictment had denied him the possibility of attacking the grounds relied upon to justify his remand and maintenance in custody. The doctrine of equality of arms requires that the applicant should be given the opportunity to appear at the same time as the prosecutor in order to reply to his conclusions, as well as before the examining magistrate.
These cases also concerns the violation of the applicant’s right to a speedy determination of the lawfulness of his detention and his applications for release (violations of Article 5§4). The Court found that in principle, given that the liberty of the individual was at issue, the state is under a duty to ensure that proceedings take a minimum amount of time. It considered that the 96 days (Giosakis No. 1), 67 and 48 days (Giosakis No. 2) taken to pronounce upon the lawfulness of the applicant’s detention and his applications for release did not respond to the requirement of “speediness”.

The Deputies decided to resume consideration of these items at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 1 case against Hungary

12188/06 Csánics, judgment of 20/01/2009, final on 29/04/2009
This case concerns the violation of the applicant's right to freedom of expression resulting from domestic courts’ decisions in 2005 ordering him to rectify certain assertions he had made at a trade union demonstration he had organised, concerning a certain company and its director (violation of Article 10).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 4 cases against Italy

33932/06 Todorova, judgment of 13/01/2009, final on 13/04/2009
This case concerns a violation of the applicant’s right to respect for her family life due to the authorities' failure, between 2005 and 2006, to ensure that the applicant’s consent to giving up her children had been given in full knowledge of the implications and had been attended by the appropriate guarantees (violation of Article 8).
The European Court considered that declaring the children eligible for adoption 27 days after their birth, without hearing evidence from their mother, had been a drastic step, in particular taking into account that the applicant had requested leave to give evidence, having begun to entertain doubts as to her decision to give up the children (§ 80).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

29768/05 Errico, judgment of 24/02/2009, final on 24/05/2009
This case concerns a violation of the applicant’s right to respect for his family life on account of the delay in concluding the preliminary investigation against him for sexual abuse of one of his children (violation of Article 8).
The European Court observed that, if the suspension of contacts between the applicant and his daughter were justified as long as the investigations against him were not concluded, excessive delay, which had a direct impact on the applicant’s family life, occurred in the criminal proceedings. Italian authorities therefore failed to take all the necessary measures which they could be reasonably expected to take to re-establish the applicant’s family life with his daughter, in the interest of both (§61).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

75909/01 Sud Fondi Srl and others, judgment of 20/01/2009, final on 20/04/2009
This case concerns the infringement of the principle of “no punishment without a law” in that the confiscation of land and buildings in Bari belonging to the applicant companies was without legal basis and that the sanction imposed was accordingly arbitrary (violation of Article 7).
The European Court observed that the legal basis of the offence did not meet the criteria of clarity, accessibility and predictability, and that it was thus impossible for the applicants to anticipate that a sanction might be inflicted (§ 114).
The case also concerns a violation of the applicants' right to the peaceful enjoyment of their possessions in that the interference (i.e. the confiscation) was arbitrary and unjustified as regards the fair balance that must be struck between the demands of the general interest of the community and the requirements of the protection of individuals’ fundamental rights (violation of Article 1 of Protocol No. 1).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

*246/07 Ben Khemais, judgment of 08/07/2009, final on 06/07/2009
The case concerns the applicant’s deportation to Tunisia on 03/06/2008 following a ministerial decree of 31/05/2008 despite the European Court’s interim measure, by virtue of Rule 39, indicating to the Italian government on 29/03/2007 that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the applicant to Tunisia until the Court had had an opportunity to examine the application further. The ministerial decree ordering the applicant’s deportation was confirmed by a judge on 02/06/2008 (i.e. one day before his deportation) but the applicant had no effective remedy to challenge it before domestic courts. Following his deportation, the Italian authorities sought assurances from the Tunisian authorities that the applicant would not be subjected to ill-treatment; that he would have a fair trial and that he would be allowed to see his lawyers, including his Italian lawyer who represented him before the European Court. In a letter of 26/08/2008 the Tunisian Attorney General of the Directorate of Judicial Services gave assurances to the Italian authorities that the applicant would not be subject to ill-treatment, would receive medical treatment and would be allowed to see his lawyers and relatives. However, it was stated in the letter that the applicant could not be allowed to see the lawyer who had represented him before the European Court.
The applicant is currently serving his prison sentence in Tunisia on the basis of his conviction in 2002 for his involvement in a terrorist organisation. The applicant was also convicted in Italy of various crimes prior to his deportation.
Referring to its judgment in the case of Saadi against Italy (judgment of 28/02/2008), the European Court reiterated that international reports mentioned numerous and regular cases of torture and ill-treatment meted out in Tunisia to persons suspected or found guilty of terrorism. Amnesty International’s 2008 report on Tunisia indicated that “in virtually all cases the authorities had failed to carry out investigations or bring the alleged perpetrators to justice”. The inability of the applicant’s representative before the Court to visit his client confirmed the difficulty experienced by Tunisian prisoners in gaining access to independent foreign lawyers who could verify their clients’ detention conditions. It also appeared impossible for the Italian government to undertake any such checks since their ambassador could not see the applicant. As to the assurances given by the Tunisian authorities, the Court found that it was not established whether the Attorney General of the Directorate of Judicial Services was authorised to give assurances on behalf of the state. In any event, those assurances could not have been considered to secure effective protection against the serious risk of ill-treatment incurred by the applicant. The Court also reiterated in this respect the principle affirmed by the Parliamentary Assembly in its Resolution 1433(2005), according to which diplomatic assurances could not be relied on unless the absence of a risk of ill-treatment was firmly established. In light of these considerations, the Court found that the applicant’s deportation to Tunisia amounted to a violation of Article 3.
As to the applicant’s effective exercise of his right to individual application, the Court noted that the Italian government, before deporting the applicant, had not requested the lifting of the interim measure adopted under Rule 39 and had proceeded to deport him without even obtaining diplomatic assurances. Consequently, the applicant had not been able to advance all the arguments relevant to his defence and the judgment of the Court was liable to be deprived of all useful effect. The fact that the applicant had been removed from Italy’s jurisdiction presented a serious obstacle that could prevent the Italian government from complying with their obligations to protect the applicant’s rights and erase the consequences of the violations in accordance with Article 46 of the Convention (violation of Article 34).
Individual and general measures: It should be noted that failure to comply with an interim measure in the context of a deportation constitutes an irreversible hindrance to the effective exercise of the right of individual petition of deported applicants. However, it is noted with regret that, after the judgment in the present case became final, the applicant in the case of Ali Toumi (application No. 25719/09) had been deported to Tunisia on 02/08/2009 despite the Court’s request for an interim measure. For this reason, it is all the more important and urgent to take general measures to prevent such violations in the future.
Information is therefore awaited, in the form of an action plan, on the measures envisaged by the Italian authorities to prevent similar violations.

Information is also awaited as to whether the Italian authorities envisage taking any measures with respect to the applicant.

The Deputies,
1. stressed the fundamental importance of complying with interim measures indicated by the Court under Rule 39 of the Rules of Court;
2. took note of the information given by the Italian authorities and invited them to provide to the Committee, in the form of an action plan, updated and tangible information on measures taken or envisaged with the aim of preventing similar violations, as well as on any measures envisaged with respect to the applicant;
3. decided to resume consideration of this item at the latest at their DH meeting in March 2010, in the light of information to be provided on general and individual measures.

- 1 case against Lithuania

16013/02 Četvertakas and others, judgment of 20/01/2009, final on 20/04/2009
This case concerns the excessive length of civil proceedings which lasted six years and four months at three levels of jurisdiction (violation of Article 6§1).
As to the government’s objection that the applicant should have claimed for compensation before the domestic courts, the European Court held that a claim for damages under the Civil Code did not acquire a sufficient degree of legal certainty requiring its exhaustion.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 1 case against Luxembourg

40761/05 Bodeving, judgment of 23/10/2008, final on 06/04/2009
This case concerns the excessive length of certain civil proceedings which began on 22/05/1995 and ended on 29/11/2007 (12 years and six months for two levels of jurisdiction) (violation of Article 6§1).
Concerning the violation of Article 6§1 due to the excessive length of civil proceedings prior to 16/09/1998, this case presents similarities to the Berlin case (44978/98) and the Dattel and others case (13130/02) (Section 6.2).
The European Court also found that the appeal proceedings, which took place under the law of 11/08/1996, which entered into force on 16/09/1998, lasted two years and 11 months, which is not compatible with the requirements of Article 6 (§40). In the Court’s view the competent magistrate (Juge de la mise en état) should have managed the procedure particularly rigorously and carefully.
It may also be noted that the Committee is currently examining the question of the existence of an effective remedy whereby complaint may be made about the excessive length of proceedings in the context of the cases of Schumacher (63286/00 judgment of 25/11/2003, 1072nd meeting, December 2009) and Rezette (73983/01, judgment of 13/07/2004, 1072nd meeting, December 2009) which concern the excessive length of criminal proceedings. In this context, it may be noted that in the Bodeving judgment, the European Court held that the remedy provided by the Law of 1/09/1988 had not acquired a sufficient degree of legal certainty to be used or exhausted by the applicant for the purposes of Article 35§1 of the Convention (§33).
The European Court’s judgment was published at the website of the Ministry of Justice (www.mj.public.lu) and sent out to the High Court of Justice of Luxembourg.

The Deputies
1. noted that no other measure seems necessary 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.

- 10 cases against Poland

15562/02 Lewandowski and Lewandowska, judgment of 13/01/2009, final on 13/04/2009
19616/04 Pieniak, judgment of 24/02/2009, final on 24/05/2009
These cases concern inhuman and degrading treatment suffered by the applicants when arrested by the police (substantive violations of Article 3) and the absence of any effective investigation into the circumstances of these incidents (procedural violations of Article 3).
In the first case, the applicants’ son, who committed suicide in 2001, sustained a number of relatively serious injuries in the course of his arrest in August 2000 in Legionowo. The European Court found that the government had not provided convincing or credible arguments which would provide a basis to explain or justify the degree of force used during the arrest, in particular because the conclusions of the district prosecutor, who investigated the circumstances of the alleged ill-treatment of the applicants’ son by police officers, were inconsistent with the medical and forensic reports drawn up in this case. Moreover, the European Court noted that the prosecutor’s investigation was superficial, lacked objectivity and ended with decisions which contained conclusions not supported by a careful analysis of facts.
In the second case, the applicant alleged that he had beaten by the police during his arrest at the Łuków Police Station in September 2001. The European Court considered that the government failed to provide a plausible explanation of how the applicant’s injuries, which became visible three days after his admission to the Siedlce detention centre, were sustained. It also found that the prosecutor’s investigation into the applicant’s allegations, instituted only in February 2003, reopened once and discontinued in March 2007, was not sufficiently thorough and effective; there had been a series of delays, the total duration of which cannot be reasonably justified.

The Deputies decided to resume consideration of these items at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

23052/05 Kaprykowski, judgment of 03/02/2009, final on 03/05/2009
*28300/06 Musiał Sławomir, judgment of 20/01/2009, final on 05/06/2009
44369/02 Wenerski, judgment of 20/01/2009, final on 20/04/2009
These cases concern inhuman and degrading treatment of the applicants due to lack of adequate medical care in detention facilities (violations of Article 3).
In the Kaprykowski case the applicant, who was suffering of epilepsy, encephalopathy and dementia, was held on remand in several detention facilities. He had frequent epileptic fits and required constant medical supervision. The European Court found that during his detention on remand at various times between 2005 and 2007 in the Poznan Remand Centre, he lacked adequate medical treatment and was placed in a position of dependency and inferiority vis-à-vis his healthy cellmates. This was not least because the establishment did not specialise in treating neurological disorders and the applicant spent almost seven months in an ordinary cell, without constant medical supervision.
In the Musiał case the applicant, who is suffering from epilepsy, schizophrenia and other serious disorders, has been detained on remand since April 2005. During nearly three and a half years’ detention he has, for the most part, been detained with healthy inmates in ordinary detention facilities, even though he requires regular psychiatric supervision. In addition, the European Court observed that the establishments in which he has been held faced overcrowding and hygiene problems that the cumulative effects of the inadequate medical care and inappropriate detention conditions were such as to be qualified as inhuman and degrading. Moreover, the Court, mindful of the structural nature of these problems, called upon the Polish authorities under Article 46 to take the necessary legislative and administrative measures to secure appropriate conditions of detention, in particular adequate conditions and medical treatment for prisoners needing special care owing to their state of health (§ 107). It also urged them to put an end to the violation of Article 3 in this case by securing adequate detention conditions for the applicant as soon as possible in an establishment capable of providing him with the necessary psychiatric treatment and constant medical supervision (§ 108).
In the Wenerski case the applicant, who was remanded in custody in 2001 and has been serving a prison sentence since 2003, suffered from a serious eye problem and, according to a 1998 medical report, needed urgently to undergo an operation on his right eye socket. However, until 2004 the custodial authorities failed to take the necessary steps to ensure that this operation was carried out without delay, even though at least two hospitals agreed to have it performed “under escort”, thus not requiring the applicant to be released.

The case also concerns a violation of the applicant’s right to respect for his correspondence in that a letter sent to him by the European Court in 2003 had been opened and marked “censored” (violation of Article 8).

The Deputies,
1. recalled the structural character of the lack of appropriate detention conditions and medical treatment for detainees requiring special care due to their state of health;
2. noted with interest the information provided at the meeting by the Polish authorities on general measures taken and envisaged in the light of this situation, encouraged them to continue their efforts in this direction and to provide the Committee with a detailed stock-taking of measures already taken and an action plan concerning additional measures under way;
3. noted that Mr Kaprykovski and Mr Musiał were no longer in detention and accordingly considered that no individual measure is required in their cases; but noted in addition the information provided concerning the present situation of Mr Wenerski and invited the authorities to take all measures called for by his state of health;
4. decided to resume consideration of these items at the latest at their DH meeting in March 2010 in the light of further information requested concerning Mr Wenerski’s circumstances and of an action plan / action report to be provided by the authorities.

28586/03 Czarnowski, judgment of 20/01/2009, final on 20/04/2009, rectified on 04/06/2009
This case concerns a breach of the applicant’s right to respect for his private and family life “not necessary in democratic society” in that, when serving a prison sentence, he was denied leave to attend his fathers' funeral, by a decision of the Penitentiary Judge of the Gdansk Regional Court of 21/07/2003 (violation of Article 8).
The European Court found it regrettable that the penitentiary judge’s decision had not taken into account the Ploski judgment (judgment of 12/11/02, final on 12/02/03, Section 6.2), concerning a similar issue (§ 30).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

53025/99 Frankowicz, judgment of 16/12/2008, final on 04/05/2009
This case concerns the violation of the applicant’s right to freedom of expression due to his conviction in disciplinary proceedings, a decision subsequently upheld by the Supreme Medical Court in May 1998 (violation of Article 10).
The applicant, a gynaecologist, was found guilty of unethical conduct in breach of the principle of professional solidarity, in violation of the Code of Ethics, and reprimanded for having prepared a critical opinion on hepatological and dermatological treatment prescribed by another doctor for one of his patients.
The European Court found that this sanction, although provided by law and pursuing a legitimate aim, i.e., the protection of the rights and reputation of others, was not “necessary in a democratic society”. It stressed that the applicant’s opinion concerned a critical assessment from a medical point of view of treatment received by his patient from another doctor, which was an issue of public interest and that the disciplinary courts’ approach risked discouraging medical practitioners from providing their patients with an objective view of their state of health and treatment received.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

52479/99 Rybacki, judgment of 13/01/2009, final on 13/04/2009
This case concerns the excessive length of detention of the applicant on remand between 1996 and 1999, as the grounds for prolonging detention where neither “relevant” nor “sufficient” (violation of Article 5§3).
The case also concerns the violation of the applicant’s right to defend himself through legal assistance of his own choosing, since for over six months of his detention on remand, between May 1996 and November 1996, on the basis of the prosecutor’s decisions he could not communicate with his lawyer out of the earshot of the prosecutor or a person appointed by him (violation of Article 6§3 (c) in conjunction with Article 6§1).

The European Court noted that there were no sufficient grounds for imposing this restriction, there being no indication of a risk of collusion arising out of the lawyer’s contacts with the applicant; neither the professional ethics of the lawyer nor the lawfulness of his conduct were called into question. The fact that throughout the period of the restrictions the prosecution authorities gathered very voluminous evidence and were actively preparing the bill of indictment taken together with the considerable length of that period can only strengthen the conclusion that the absence of unhindered contacts with the lawyer negatively affected the effective exercise of the applicant’s defence rights.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

4317/04 Kaźmierczack, judgment of 10/03/2009, final on 10/06/2009
*5422/04 Wojciechowski, judgment of 09/12/2008, final on 05/06/2009
These cases concern a breach of the applicants’ right to the presumption of innocence until proved guilty according to law, due to the grounds used by the courts to motivate decisions extending the applicants’ detention on remand. In the decisions delivered respectively on 3/11/2003 and 03/09/2002, before the applicants were convicted, the Wroclaw Regional Court and Lublin Regional Court stated that they had committed offences with which they had been charged. The European Court found that there could be no justification for a court’s making such a premature expression (violation of Article 6§2).
The events took place subsequent to the European Court's judgment in the Garycki case (14348/02, section 5.3) and these new cases would seem to indicate that the problem is still present in judicial practice.
The case of Wojciechowski also concerns the excessive length of the applicant's detention on remand between 2001 and 2004 (violation of Article 5§3).

The Deputies decided to resume consideration of these items at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 1 case against Portugal

31276/05 Women On Waves and others, judgment of 03/02/2009, final on 03/05/2009
The case concerns the Portuguese administrative authorities’ decision to prohibit the ship Borndiep, which had been chartered with a view to staging activities promoting the decriminalisation of abortion, from entering Portuguese territorial waters, on the basis of maritime law and Portuguese health laws (violation of Article 10). The European Court noted the lack of sufficiently strong evidence of any intention on the part of the applicant associations deliberately to breach Portuguese abortion legislation and considered that in seeking to prevent disorder and protect health, the Portuguese authorities could have resorted to other means that were less restrictive of the applicant associations’ rights.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 7 cases against Romania

63258/00 Gagiu, judgment of 24/02/2009, final on 24/05/2009
The case concerns the authorities’ failure in their positive obligation to protect the life of the applicant, who died in 2001 in a prison hospital, and to carry out an effective investigation of his death (violation of Article 2 in its substantial and procedural aspects).
With regard to the substantial aspect of Article 2, the applicant complained in his application that the treatment he received constituted a threat to his life. A fortiori after the applicant’s death, the European Court found in favour of this contention. The Court considered that the prison and medical authorities did not react with the necessary diligence to provide him with appropriate medical treatment. They were aware of his medical history and of other serious conditions diagnosed during his detention, and that his condition called for appropriate monitoring and treatment.
With regard to the procedural aspect of Article 2, the European Court found that the investigation carried out by the authorities had not been effective, given that it was not of a nature to identify the degree of responsibility of those in charge of monitoring the applicant’s health and providing appropriate care. Thus the investigation, while opened ex officio and conducted diligently, was limited in scope – namely to the treatment provided in the hospital where the applicant was brought the day before his death – thus excluding possible negligence on the part of the prison authorities responsible for treating him during the period prior to his death and possibly preventing it.
The case also concerns degrading detention conditions due to prison overcrowding and the lack of health and hygiene facilities appropriate to the condition of the applicant (violation of Article 3), non-compliance with the positive obligation to providing the applicant with the necessary materials (stamps in particular) for his correspondence with the European Court (violation of Article 8) and the hindrance of the effective exercise of the right of individual petition, in particular by the dissuasive attitude of the prison authorities and the unjustified delay in providing copies of the documents necessary for the applicant to be able to present his application before the European Court (violation of Article 34).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

5325/03 Voiculescu, judgment of 03/02/2009, final on 03/05/2009
The case concerns the ineffectiveness of the investigation of the circumstances in which the applicant’s mother died in March 1998 after being knocked down by a military vehicle, the working condition of which had not been properly checked, on a light-controlled pedestrian crossing set at green (violation of Article 2 in its procedural aspect).
In finding the violation, the European Court also took into consideration the duration of the investigation (seven years and seven months), the repeated referrals of the case by the military court or by the hierarchically superior military prosecutor to the military prosecutor to have the investigation completed and the lack of impartiality of the military prosecutor.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

42716/02 Toma, judgment of 24/02/2009, final on 24/05/2009
The case concerns inhuman treatment inflicted on the applicant by police officers and the lack of an effective investigation into this aspect (violation of Article 3 under its substantive and procedural limbs).
The case also concerns the failure to respect the applicant’s right to be brought promptly before a judge (violation of Article 5§3) and of that of having his complaint against the order of the prosecutor placing him in detention on remand be examined speedily (violation of Article 5§4).
The case further concerns the failure to observe the applicant’s right to respect for his private life due to the broadcasting of images and publication of a photograph of the applicant at the police station (violation of Article 8).
Concerning this last aspect, the European Court considered that the behaviour of the police officers who had called the journalists and authorised them, without the applicant’s consent, to film the applicant at the police headquarters for publication in the media, was an interference which did not pursue any legitimate aim.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

21911/03 Tudor Tudor, judgment of 24/03/2009, final on 24/06/2009
This case concerns a violation of the applicant’s right to a fair trial due to conflicting case-law of the Bucharest Appeal Court with respect to the interpretation of certain aspects of the laws on the restitution of property (violation of Article 6 §1).
By a final decision of January 2003, the Bucharest Appeal Court ordered the applicant to restore an apartment he had bought from the state under Law No. 112/1995 on the legal status of certain residential property, to its previous owner.
The same domestic court adopted conflicting decisions in identical cases brought by the former owner against other buyers of apartments situated in the same building as his.
In finding the violation, the European Court noted in particular that the divergent interpretations were given by the same tribunal, which was also the court of last resort in the matter. It also noted that the interpretation of essential aspects of the restitution laws is still changing and that there is no definitive settlement of the interpretation given by the courts in this matter.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided.

26985/03 Burghelea, judgment of 27/01/2009, final on 27/04/2009
The case concerns the failure to respect the applicant’s right to the peaceful enjoyment of her possessions due to the occupancy of her land with no prior agreement as to the terms of transfer or compensation, as part of a hydroelectric power station construction project (violation of Article 1 of Protocol No. 1).
The European Court considered that the authorities had not properly complied with the rules governing proper expropriation and had made no preliminary offer regarding compensation and that thus the interference with the applicant’s right had not been compatible with the principle of legality.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

23066/02 Faimblat, judgment of 13/01/2009, final on 13/04/2009
The case concerns the violation of the applicants’ right of access to a court due to a decision of inadmissibility, which became final in April 2002, in respect of an action they brought to have the nationalisation of an apartment belonging to their father declared illegal, on the ground that the applicants should follow the administrative procedure provided by Law No. 10/2001 on the legal rules applicable to real property wrongfully nationalised between 1945 and 1989 (violation of Article 6§1).
The European Court found that the rejection of the applicants’ claim would not, as such, have posed problems under the Convention if the procedure provided by Law No. 10/2001 had been an effective legal means. In this context, it recalled its conclusions in previous cases concerning the procedure established by this law, in which it had considered that the fund it instituted, as modified in 2005, did not function in a manner which could be viewed as equivalent to the award of effective compensation. Accordingly, more than seven years after initiating the administrative procedure, the applicants did not receive any compensation.
The Court recalled that the finding of a violation in this case revealed a large-scale problem arising from the shortcomings of the legislation concerning restitution of nationalised property and of its implementation by the administrative authorities. It considered that the state should, as soon as possible, take the necessary legislative measures to ensure that restitution claims receive a definitive response from the administrative authorities within a reasonable time and to remove the legal obstacles to the rapid enforcement of final decisions rendered by the administration or by the courts.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

36478/02 Jones, judgment of 03/02/2009, final on 03/05/2009
The case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions in that the administrative authorities prevented him from securing the return of his property for approximately five years (violation of Article 1 of Protocol No. 1).
In July 2001, the Giurgiu municipal authority restored the property in question to the applicant’s possession. However, the Prefect then intervened on behalf of the government to oppose this decision and there followed a series of judicial proceedings and contradictory decisions until the applicant was finally restored to enjoyment of his property in June 2006, five years after the initial decision.
The European Court considered that it was the authorities’ duty to clarify the status of the building in question and to ensure that the legal procedure for the restitution of nationalised property was observed, noting that the applicant had also been deprived of any compensation or reparatory measure. The European Court also expressed doubts as to the pertinence of the reasons given by the domestic courts which decided the annulment of the administrative decision of restitution.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 8 cases against the Russian Federation

*46468/06 Aleksanyan, judgment of 22/12/2008, final on 05/06/2009
The case concerns the inhuman and degrading treatment suffered by the applicant, an HIV-positive detainee, in that the authorities failed to take sufficient care of the applicant’ health (violation of Article 3). In violation of two interim measures indicated by the Court, the authorities failed to transfer him to a specialist medical institution and to allow his examination by a medical commission which would include doctors of his choice (violation of Article 34). The European Court stated that the applicant’s illness could not be treated in the framework of detention in remand. It also recalled that the proceedings against the applicant had been suspended and were not likely to be reopened in the foreseeable future. The Court concluded that the applicant’s continuous detention was unacceptable and that the Russian government was to replace detention on remand with other, reasonable and less stringent, measure of restraint, or with a combination of such measures provided by Russian law (§240).
It appears that on 12/12/2008 the applicant was released on bail. It further appears that on 12/01/2009 he left the Moscow Town Hospital No. 60, a general clinic in which he had been placed on 8/02/2008.
The confirmation of the applicant’s release is awaited.
The case also concerns the excessive length of the applicant’s pre-trial detention due to the domestic court’s failure to address concrete facts concerning his poor health or to consider alternative “preventive measures” and to justify the extension of his detention with relevant and sufficient reasons (violation of Article 5§3). Finally the case concerns the violation of the applicant’s right to respect for his home and correspondence on account of searches carried out in his premises (the applicant is a lawyer) due to the lack of proper reasoning and vagueness of the search warrant (violation of Article 8).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

*25385/04 Medova, judgment of 15/01/2009, final on 05/06/2009
The case concerns the disappearance of the applicant’s husband in June 2004 in Ingushetia. He was abducted by a group of armed men who identified themselves as Federal Security Service (“FSB”) officers. Their car, with the applicant’s husband in the boot, was stopped at a Russian military checkpoint near the administrative border with the Chechen Republic. As they refused to produce appropriate identity documents, they were taken to the Sunzhenskiy Interior Directorate (ROVD) for further enquiries. After they identified themselves as FSB officers, they were all released and drove with the applicant’s husband to Chechnya. The applicant’s husband has not been seen since.
The European Court found that the authorities had failed to comply with their positive obligation to protect the applicant’s husband’s life and to conduct an effective investigation into his abduction (violations of Article 2). The Court also noted the lack of an effective remedy in this respect (violation of Article 13).

The Court further considered that the authorities had failed to comply with their positive obligation to bring the applicant’s husband’s arbitrary deprivation of liberty to an end, although they had every means to do so (violation of Article 5).
Finally, the Court found that the authorities had failed to comply with their obligation to co-operate with the Court in that they refused to submit the requested documents (violation of Article 38).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

32147/04 Kuimov, judgment of 08/01/2009, final on 08/04/2009
The case concerns the violation of the applicant’s right to family life on account of the restrictions imposed by the authorities concerning the access to his adoptive child (violation of Article 8). In this respect, on 11/12/2003 the child was removed from her parents and hospitalised in intensive care, as the applicant consistently refused to allow his child to receive the necessary treatment. Subsequently the child was placed in a foster family. On 2/11/2005 the child was returned to the applicant and his spouse.
The European Court found that severe and unjustified restrictions had been imposed on the applicant’s access to the child during the period between 11/12/2003 and 25/01/2005.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

*6293/04 Mirilashvili, judgment of 11/12/2008, final on 05/06/2009
The case concerns the unfairness of the criminal proceedings which resulted in the applicant’s being convicted in November 2003 and sentenced to eight years’ imprisonment for organising the abduction of several people who had been implicated in the kidnapping of his father. The conviction was mainly based on witness statements, experts’ opinions and material evidence, such as audio-tapes and documents.
As regards the recordings of telephone conversations, the domestic courts refused to disclose to the defence the documents authorising the wiretapping, on the ground that the Operational and Search Activities Act of 1995 prohibited in absolute terms the disclosure of documents relating to operational and search activities. This Act considerably limits the judge’s role, since he is not allowed to analyse whether those materials would have been of any assistance to the defence, and whether their disclosure would have harmed any identifiable public interest. This being so, the European Court found that the decision to withhold materials relating to the surveillance operation was not accompanied by adequate procedural guarantees and, furthermore, was not sufficiently justified.
As regards the testimony of key witnesses no longer present in Russia, the domestic courts refused to admit written statements from them obtained by the defence. In these statements, the witnesses retracted the testimony they had previously given to the prosecution. The domestic courts considered that the law prohibited defence lawyers from questioning witnesses after they had been questioned by the prosecution and outside of the “proper” procedure of collecting of evidence prescribed by law. The European Court concluded that, in the particular circumstances of the case, where the applicant was unable to examine several key witnesses in court or at least at the pre-trial stage, such refusal was not justified.
The Court therefore considered that the proceedings in question, taken as a whole, had not satisfied the requirements of a “fair hearing” since the defence was placed at a serious disadvantage vis-à-vis the prosecution in respect of the examination of a very important part of the evidence (violation of Article 6§1).
Individual measures: It transpires from the European Court’s judgment that the applicant is currently serving a prison sentence in a correctional colony in the region of Orenburg.
Information is awaited as to whether the applicant has requested the reopening of proceedings.
General measures:
The authorities are invited to provide an action plan / action report.

The Deputies decided to resume consideration of this item:
1. at their 1072nd meeting (December 2009) (DH) in the light of information to be provided on individual measures;
2. at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities on general measures.

3891/03 Samokhvalov, judgment of 12/02/2009, final on 12/05/2009
The case concerns the violation of the applicant’s right to a fair trial in that an appeal hearing was held by Kurgan Regional Court on 1/07/2002 (the date of entry into force of the new Code of Criminal Procedure) in the applicant’s absence. The appeal court failed to verify whether the applicant had been duly informed of the hearing and of the steps to be taken in order to participate in it (violation of Article 6§1 in conjunction with Article 6§3 (c).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

42454/02 Menchinskaya, judgment of 15/01/2009, final on 15/04/2009
The case concerns the violation of the principle of equality of arms due to an intervention by the prosecutor, unjustified by any special circumstance, under the former Code of Civil Procedure, in appeal proceedings between the applicant and a state body (violation of Article 6§1).

The Deputies decided to resume consideration of this item
1. at their 1072nd meeting (December 2009) (DH), in the light of information to be provided on individual measures, namely the reopening of the proceedings at issue;
2. at the latest at their DH meeting in March 2010, in the light of and action plan / action report to be provided by the authorities on general measures.

*1758/02 Kazakov, judgment of 18/12/2008, final on 05/06/2009
The case concerns the violation of the right to freedom of expression of the applicant, a former military officer, in that defamation proceedings brought against him for having, in his private capacity, submitted a written complaint to the competent military official concerning a unit commander, resulted in his being ordered to issue an apology (violation of Article 10).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

33509/04 Burdov No. 2, judgment of 15/01/2009, final on 04/05/2009
CM/Inf/DH(2006)19rev2, CM/Inf/DH(2006)19rev3, CM/Inf/DH(2006)45
Interim Resolution CM/ResDH(2009)43
Introductory case summary: The case concerns violations of the applicant’s right to a court due to the Russian social authorities' failure over several years to enforce final judicial decisions ordering them to pay certain compensation and allowances (with subsequent indexation) for health damage sustained by the applicant during emergency and rescue operations at the Chernobyl nuclear plant and damages for their delayed enforcement (violations of Article 6§1 and of Article 1 of Protocol No. 1).
The case also concerns the lack of an effective remedy which could have provided the applicant with adequate redress for the continued non-enforcement of the judgments in his favour (violation of Article 13).
“Pilot-judgment” procedure: The European Court recalled that non-enforcement or delayed enforcement of domestic judgments constituted a recurrent problem in Russia that had led to more than 200 judgments finding violations of the Convention since the first Burdov case in 2002. Approximately 700 cases concerning similar facts were currently pending. In these circumstances, the Court held that the breaches found reflected a persistent structural dysfunction and that the situation had to be qualified as a practice incompatible with the Convention.
1) General measures to solve problems at the basis of the repetitive violations of the Convention: The European Court noted that the problems underlying the repetitive violations of the Convention required the implementation of comprehensive and complex measures, possibly of legislative and administrative character, involving various authorities at both federal and local level. The Committee of Ministers is better placed and equipped to monitor the necessary reforms to be adopted by Russia in this respect. In these circumstances, the Court abstained from indicating any specific general measure to be taken.

2) Lack of effective domestic remedies: However, the situation was different as regards the lack of effective domestic remedies. The Court’s findings clearly called for the setting up of an effective domestic remedy or a combination of remedies allowing adequate and sufficient redress to be granted to large numbers of people affected by such violations. In these circumstances the Court required the respondent state to introduce a remedy which secured genuinely effective redress for the violations of the Convention on account of the state authorities’ prolonged failure to comply with judicial decisions delivered against the state or its entities. Such a remedy should conform to the Convention’s principles as laid down in particular in the judgment in the case before it and should be available within six months from the date on which the judgment became final.
3) Individual applications lodged before the delivery of the pilot judgment and communicated to the government: As regards applications lodged before the delivery of the judgment and communicated to the government under Rule 54 § 2(b) of the Rules of the Court, the Court held that the respondent state was under an obligation to grant adequate and sufficient redress, within one year from the date on which the judgment became final, to all victims of non-payment or unreasonably delayed payment by state authorities of a domestic judgment debt in their favour. Pending the adoption of domestic remedial measures by the Russian authorities, the adversarial proceedings in all these cases would be adjourned for one year from the date on which the judgment became final.
4) Individual applications lodged after the delivery of the pilot judgment: The Court decided to adjourn the proceedings on all new applications lodged after the delivery of the present judgment, in which the applicants complained solely of non-enforcement and/or delayed enforcement of domestic judgments ordering monetary payments by state authorities. The adjournment would be effective for a period of one year after the present judgment became final.
Individual measures: All domestic judgments in the applicant’s favour have been enforced. The European Court awarded just satisfaction in respect of non-pecuniary damage sustained.
General measures:
1) Resolution of problems at the basis of the repetitive violations of the Convention: The progress achieved and outstanding issues with regard to the implementation of the necessary reforms are being examined by the Committee of Ministers in the Timofeyev group of cases (Section 4.3, for more details see in particular CM/Inf/DH(2006)45, CM/Inf/DH(2006)19 revised 3, Interim Resolution CM/ResDH(2009)43).
2) Setting up domestic remedies: The draft constitutional law setting up a remedy before domestic courts in case of excessive length of proceedings and execution proceedings was prepared by the Supreme Court of the Russian Federation. On 26/09/2008 the Supreme Court of the Russian Federation submitted the draft law to the Parliament. In the meantime, a special working group involving representatives of the main state agencies has been set up upon the President’s mandate rapidly to find an appropriate solution with a view to introducing a remedy required by the Convention in the Russian legal system.
In its Interim Resolution CM/ResDH(2009)43 adopted at 1051st meeting (March 2009), the Committee of Ministers called upon the Russian authorities […] to set up […] effective domestic remedies either through rapid adoption of the constitutional law mentioned above or through amendment of the existing legislation in line with the Convention’s requirements.
Information is thus awaited on progress in adopting the measures required by the pilot judgment.

3) Individual applications lodged before the delivery of the pilot judgment and communicated to the government
Information is awaited on measures taken or envisaged to grant adequate and sufficient redress to all victims of non-payment or unreasonably delayed payment by state authorities of domestic judgment debts in their favour.

The Deputies,
1. took note of the information provided by the Russian authorities on the measures which are being taken in response to the pilot judgment delivered by the European Court in the case Burdov No 2;
2. noted with interest the draft laws introducing a new remedy to ensure effective compensation for damages caused by non-execution or delayed execution of judicial decisions, as well as the ongoing settlement of some 500 cases involving 1100 applicants whose applications predate the delivery of the pilot judgment;
3. called upon all authorities of the Russian Federation to give priority to the adoption of the aforementioned drafts laws in order to make the new remedy available within the time-limits set by the Court;
4. decided to resume consideration of these cases at their 1072nd meeting (December 2009) (DH), to assess the progress achieved in the implementation of the above measures on the basis of a draft Interim Resolution to be prepared by the Secretariat;
5. decided to examine the adoption of other general measures necessary to prevent violations due to non-execution or delayed execution of domestic judicial decisions at the latest at their DH meeting in March 2010, in the light of further information to be provided by the Russian authorities.

- 2 cases against Spain

37496/04 Iguall Coll, judgment of 10/03/2009, final on 10/06/2009
This case concerns the violation of the applicant’s right to a fair trial as he was convicted on appeal by the Audiencia provincial without being heard at a public hearing (violation of Article 6§1).
The European Court concluded, in the light of the applicant’s acquittal at first instance after a public hearing, that his conviction on appeal without having been examined in person was not compatible with the requirements of a fair trial. It considered that a public hearing should have been held in the appellate court because this court was not limited to reaching a different interpretation of the law concerning an ensemble of objective elements, but had carried out a fresh assessment of the facts judged to have been proved at first instance.

The Deputies decided to resume consideration of this item at the latest at their meeting of March 2010, in the light of an action plan/action report to be provided by the authorities.

36777/03 Iribarren Pinillos, judgment of 08/01/2009, final on 08/04/2009
The case concerns injuries sustained by the applicant when a smoke-bomb was fired by the police during a demonstration in 1991, and the absence of an effective investigation of the incident (violation of Article 3 in both substantive and procedural aspects). The case also concerns the excessive length of the proceedings (violation of Article 6§1).
The European Court noted that it was not disputed between the parties that the applicant had been injured by a police officer during violent clashes with the security forces. Although the ensuing investigation had not identified the officer who had fired the smoke-bomb, the Audiencia Provincial had ruled that the police had committed the offence of assault occasioning bodily harm. Thus the Spanish state’s liability for the damage sustained by the applicant had been established. As for the suit for damages brought by the applicant in 1996, the Court noted that he had been partially vindicated before the Audiencia Nacional but that this judgment had been struck down by the Supreme Court in 2003 on the grounds that the police reaction had not been disproportionate, the harm suffered had been random and that accordingly the applicant should bear the consequences.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 2 cases against Switzerland

*29002/06 Schlumpf, judgment of 08/01/2009, final on 05/06/2009
The case concerns the unfairness of certain proceedings in that, when refusing to reimburse the costs of the applicant’s sex-change operation on the ground of failure to respect the prior notice required for all such procedures, the Swiss courts disregarded expert medical reports (violation of Article 6§1).
The European Court considered that it was disproportionate not to accept expert opinions, especially as it was not in dispute that the applicant was ill. By refusing to allow the applicant to adduce such evidence on the basis of an abstract rule which had its origin in two of its own decisions in 1988, the Federal Insurance Court had substituted its view for that of the medical profession, whereas the Court had previously ruled (see Van Kück, 35968/97, ECHR 2003-VII, section 6.2) that determination of the need for sex-change measures was not a matter for judicial assessment.
The case also concerns the lack of a public hearing (violation of Article 6§1).
The Court found that a hearing should have taken place at least at one level of jurisdiction, since the applicant had not waived her right to a public hearing before the Federal Court. Nor had the question of her sex-change been of an exclusively legal or technical matter, in which case the domestic courts could have abstained from holding a hearing.
Furthermore, the case also concerns the disproportionate interference with the applicant’s right to private life (violation of Article 8).
The Court considered that respect for her private life required account to be taken of the medical, biological and psychological facts, expressed unequivocally by the medical experts, to avoid a mechanical application of the two-year delay. It concluded that, in view of the applicant’s particular situation as regards her age, the Swiss authorities have failed to strike a fair balance between the interests of the insurance company and those of the applicant.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

*32772/02 Verein gegen Tierfabriken Schweiz (VgT) No. 2, judgment of 30/06/2009 – Grand Chamber
The applicant is a Swiss-registered animal protection association, which campaigns against animal experiments and battery farming. In response to various advertisements produced by the meat industry, the applicant association made a television commercial urging the public to eat less meat. Permission to broadcast the commercial was refused on 24/01/1994 by the Commercial Television Company (AG für das Werbefernsehen - now Publisuisse SA) and, at final instance, by the Federal Court which on 20/08/1997 dismissed an administrative-law appeal by the applicant association, with reference to the prohibition of political advertising laid down in the Federal Radio and Television Act.
In its judgment of 28/06/2001 concerning the applicant association’s first application (see Verein gegen Tierfabriken (VgT) No. 24699/94, ECHR 2001 VI), the European Court found this refusal to be in violation of Article 10. In the European Court’s opinion, the domestic authorities had not demonstrated in a “relevant and sufficient” manner why the grounds generally advanced in support of the prohibition of political advertising had also served to justify the interference in the particular circumstances of this case (see § 75 in fine of the judgment of 28/06/2001).
The Committee of Ministers closed the examination of that case on the basis of information available to it at that date, noting that, “as regards individual measures, the judgment was transmitted to the applicant, who was entitled to request the revision of the Federal Court’s judgment of 20/08/1997” (Final resolution ResDH(2003)125 of 22/07/2003).
The present case concerns the continued prohibition on broadcasting a television commercial after the European Court’s finding in its first judgment of a violation of freedom of expression, which amounts to a fresh violation of the applicant association’s freedom of expression (violation of Article 10).
In that respect, following the European Court’s judgment of 28/06/2001, the applicant association applied to the Federal Court for a review of its judgment of 20/08/1997. The application was dismissed on 29/04/2002. The Federal Court held, in particular, that the applicant association had not sufficiently shown that it still had an interest in broadcasting the original version of the commercial, which appeared out of date after almost eight years.

The Federal Court also noted that the applicant association had been unable to show that redress was possible only through the reopening of the proceedings; in its words, “since the Court’s judgment simply finds that the prohibition of political advertising on television must not stand in the way of broadcasting the commercial, VgT must seek to have it broadcast through recourse to the civil courts and not through the reopening procedure (…)”. In the meantime, the applicant association had again applied to Publisuisse SA for permission to broadcast the commercial with an additional comment. On 30/11/2001 Publisuisse SA refused this fresh request. An appeal against that decision was dismissed by the Federal Office of Communication on 03/03/2003.
In its judgment of 30/06/2009, the European Court took into account the following points and principles:
- in dismissing the application to reopen the proceedings at issue, the Federal Court mainly relied on new grounds capable of giving rise to a fresh violation of Article 10, which the European Court may examine without encroaching on the powers assigned to the Committee of Ministers by Article 46 (see §§65-67 of the judgment);
- total or partial failure to execute a judgment of the Court may engage the state party’s international responsibility (see §85 of the judgment);
- respondent states are required to provide the Committee of Ministers with detailed, up-to-date information on developments in the process of executing judgments that are binding on them (see §87 of the judgment);
- while the European Court clearly does not have jurisdiction to order the reopening of proceedings (see §89 of the judgment), such measure may constitute an important aspect of the execution of judgments, provided that it affords the authorities of the respondent state the opportunity to abide by the conclusions and the spirit of the judgment being executed, while complying with the procedural safeguards in the Convention (see §90 of the judgment);
- in the present case, the European Court found the approach followed by the Federal Court in its judgment of 29/04/2002 excessively formalistic, considering in addition that it had taken the place of the applicant association when judging whether there was still any purpose in broadcasting the commercial (see §§ 94-95 of the judgment);
- according to the European Court, the principle according to which contracting states are under a duty to organise their judicial systems in such a way that their courts can meet the requirements of the Convention must also apply to the execution of its judgments. It is therefore immaterial in this context to argue that the Federal Court could not in any event have ordered the commercial to be broadcast following the European Court’s judgment; the same is true of the argument that the applicant association should have instituted civil proceedings (see § 97 of the judgment) .
According to the European Court, the Swiss authorities therefore failed to comply with their positive obligation, under Article 10 in this case, to take the necessary measures to allow the television commercial at issue to be broadcast following the European Court’s first judgment.
The applicant association made no claim for pecuniary or non-pecuniary damage.

The Deputies,
1. noted with interest the information provided by the Swiss authorities concerning in particular the applicant association’s new request for review and the publication and dissemination of the European Court’s judgment;
2. invited the Swiss authorities to inform the Committee of Ministers of the developments in the new review procedure, as well as any other measure taken or envisaged to execute the judgment;
3. decided to resume consideration of this item at the latest at their DH meeting in March 2010, in the light of an action plan / action report to be provided by the authorities.

- 1 case against Sweden

*44298/02 Synnelius and Edsbergs Taxi AB, judgment of 30/06/2009 – Friendly settlement
This case concerns the applicants’ complaint about the length of taxation proceedings (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 said sum has been paid.

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

74651/01 Association of citizens “Radko” and Paunkovski, judgment of 15/01/2009, final on 15/04/2009
The case concerns the unjustified dissolution of the applicant association in 2002 following a decision of the Constitutional Court, declaring the association’s articles null and void (violation of Article 11). According to the Constitutional Court, the applicant association’s true objectives were the revival of Ivan Mihajlov-Radko’s ideology according to which “… Macedonian ethnicity never existed …, but belonged to the Bulgarians from Macedonia and its recognition (i.e. that of Macedonian ethnicity) was the biggest crime of the Bolshevik headquarters committed during its existence”. In particular, the Constitutional Court found that the applicant association’s articles were directed towards the violent destruction of the constitutional order of the respondent state and to incitement to national or religious hatred or intolerance.
The European Court accepted that the name “Radko” and his or his followers’ ideas were liable to arouse hostile sentiments among the population of the respondent state, given that they had connotations likely to offend the views of the majority of the population. However, it considered that the naming of the association after an individual who was negatively perceived by the majority of population could not in itself be considered reprehensible or to constitute in itself a present and imminent threat to public order (§75).
The European Court concluded that the dissolution of the applicant association was provided by law and pursued a legitimate aim. However, such dissolution did not pursue a pressing social need and thus could not be deemed necessary in a democratic society for two reasons: first, the applicant association had not hinted at any intention to use violence or other illegal or undemocratic means to achieve its aims; secondly, the Constitutional Court provided no explanation as to why a negation of Macedonian ethnicity had been tantamount to violence, especially to violent destruction of the constitutional order (§§72, 78).
Individual measures: The European Court awarded just satisfaction to the applicants in respect of non-pecuniary damage (§84). As to the applicants’ request for registration, the European Court noted “that the applicants requested it to order the respondent State to register “the political party Association of citizens “Radko”. In this connection, it is unclear whether the applicants were requesting that the Association be registered as a “political party”, for which specific rules apply. In addition, having regard to the Court’s case-law in respect of Article 11 of the Convention, as well as Article 46 of the Convention, under which the Committee of Ministers supervises the execution of the Court’s judgments, the Court sees no reason to issue a specific ruling on the applicants’ request for registration” (§85).
• Information provided by the authorities of the respondent state (29/06/2009): On 22/05/2009 the second applicant, Mr Paunkovski, requested from the authorities “the renewal of the registration” of the applicant association. On 28/05/2009 the authorities informed the second applicant that there was no possibility for the automatic registration of the applicant association and that the applicant can apply for registration under the applicable rules. In this respect, it was noted that the Central Register was currently in charge of the registration of associations in accordance with the legislative amendments introduced in 2007.
Information is awaited as to whether the applicant association has applied for registration under the applicable procedures and, if so, the outcome of this request.  
General measures:
• Information provided by the authorities of the respondent state (29/06/2009): The Law on the Execution of Decisions of the European Court of Human Rights was adopted in May 2009. It provided the establishment of an inter-agency commission mandated to propose individual and general measures in respect of the European Court’s judgments concerning the respondent state. The commission will be chaired by the Minister of Justice and should be established by the end of August 2009. It is expected that the commission will define the general measures to be taken in respect of this judgment.
The European Court's judgment has been translated and published on the internet site of the Ministry of Justice (www.pravda.gov.mk). The Government Agent forwarded the judgment and the information on the violation found to the Constitutional Court, Ohrid Court of First Instance, all appeal courts in the country, the Supreme Court and the Central Register in charge of registering citizens’ associations.
Information is awaited on the action plan / action report to be provided by the authorities.

The Deputies, having noted the information already provided by the authorities, decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

*27736/03 Petkoski and others, judgment of 08/01/2009, final on 05/06/2009
The case concerns the violation of the applicants' right of access to a court in that in 1999 the Bitola Court of Appeal rejected the claim they lodged in 1989 for annulment of the decision by an agricultural co-operative to restructure itself as a state enterprise. The Court of Appeal relied in this regard on the provisions of the 1995 Courts Act, which excluded disputes in respect of any co-operative property from court’s jurisdiction. The Supreme Court confirmed this position and dismissed the applicants’ appeal in 2002 (violation of Article 6§1).
Information provided by the authorities of the respondent state: The European Court’s judgment has been translated and published on the internet site of the Ministry of Justice (www.pravda.gov.mk). The Government Agent announced that the action plan concerning measures to be taken in respect of this case would be forwarded in due time.

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 3 cases against Turkey

70337/01 Güveç, judgment of 20/01/2009, final on 20/04/2009
The case concerns inhuman and degrading treatment inflicted on the applicant, aged 15, by putting him for five years in a prison for adults, where he made several suicide attempts, as well as the authorities’ failure in their obligation to provide appropriate medical care given his psychological condition and, finally, their failure to take steps with a view to preventing his repeated suicide attempts (violation of Article 3 in its substantial aspect).
The case also concerns the excessive length of his detention on remand (violation of Article 5 §3), and the fact that he had no real opportunity to challenge the lawfulness of this detention (violation of Article 5 §4).
The case lastly concerns the lack of legal assistance for most of the proceedings (a lawyer assigned by the trial court of its own motion did not appear at most of the hearings) so that the applicant was unable to participate effectively in the trial (violation of Article 6§ in conjunction with Article 6§3 c).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

36458/02 Temel Irfan and others, judgment of 03/03/2009, final on 03/06/2009
This case concerns a violation of the right to education of the applicants, students at various faculties, in that they were disciplined for having petitioned the university authorities to provide optional Kurdish language courses.
The European Court found that the disciplinary sanction of suspension from the University for one or two terms, although annulled by the administrative courts, could not be considered as reasonable or proportionate. It considered that the views expressed in the petitions could not be construed as an activity which would lead to polarisation on the basis of language, race or religion (violation of Article 2 of Protocol No. 1).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

23815/04 Uslu No. 2, judgment of 20/01/2009, final on 20/04/2009, rectified on 15/07/2009
The case concerns a violation of the right to respect for the private life of the applicant, who was a detainee at the material time, due the authorities’ refusal to provide him with a copy of the doctor's report issued after his medical examination at the prison. This refusal was based on a practice – with reference to a Ministry of Justice circular dated 5/12/1990 – according to which no copies of official prison documents were to be given to detainees on grounds of security and public order (violation of Article 8).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 1 case against Ukraine

16404/03 Shabelnik, judgment of 19/02/2009, final on 19/05/2009
The case concerns a violation of the applicant's right to a fair trial due to his conviction for a murder on the basis of confessions obtained at the preliminary investigation stage in violation of his right to remain silent and not to incriminate himself, and in the absence of his lawyer (violation of Article 6 §§ 1 and 3 (c)).

The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an action plan / action report to be provided by the authorities.

- 2 cases against the United Kingdom

*10578/05+ Hunt and Miller, judgment of 23/06/2009 – Friendly settlement
The case concerns complaints by the applicants (both serving in the Royal Navy at the material time) that investigations conducted into their sexual orientation and their constructive dismissal breached their right to respect for private life (complaint under Article 8). They further complained under Article 13 that they had no domestic remedy at their disposal (complaint under Article 13).
Individual measures: Under the terms of the friendly settlement, the United Kingdom authorities undertook to pay to the applicants certain sums, which are to cover pecuniary and non-pecuniary damage as well as costs and expenses
General measures: None. The friendly settlement included no undertaking in this respect.

The Deputies:
1. noted that the friendly settlement does 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 said sums have been paid.

3383/06 Bullen and Soneji, judgment of 08/01/2009, final on 08/04/2009, rectified on 27/01/2009
This case concerns the excessive length of certain criminal proceedings (four years, five months for three degrees of jurisdiction) (violation of Article 6§1).
In 2000 the applicants were convicted of conspiracy to launder the proceeds of crime. Following their conviction, proceedings were begun under the Criminal Justice Act 1988 for confiscation orders to recover the proceeds of the applicants’ criminal activity. The applicants appealed against the confiscation orders. Their appeal was ultimately decided by the House of Lords in July 2005.
The European Court found that although the proceedings were particularly complex, given the high value of the amounts at stake and the possibility of the applicants’ being re-imprisoned, there were nonetheless cumulative periods of unreasonable delay attributable to the state.
Individual measures: Following the decision of the House of Lords, the case was returned to the Court of Appeal which re-imposed the confiscation orders against the applicants in October 2005. The proceedings are therefore closed.
General measures:
On 29/06/2009, the authorities submitted a report on the action already taken in implementation to date: copies of the judgment and related guidance have been sent out to the Revenue and Customs Prosecutions Office and the Crown Prosecution Service.
The National Policing Improvement Agency issued guidance to Accredited Financial Advisers in April 2009, reminding them of the need to proceed with confiscation hearings as soon as possible. Details of the case were published in The Times (02/02/2009) and Lloyd’s Law Reports (Rep FC 210). A short summary of the case was included in Public Law 2009, April p.382 headed “Article 6: length of proceedings”.
The United Kingdom authorities also provided their action plan setting out further measures to be taken or underway:
- They will issue guidance to the Revenue and Customs Prosecutions Office and the Crown Prosecutions Service on handling confiscation procedures in compliance with court deadlines and the requirements of Article 6.
- Moreover, the authorities are also in discussions with the judiciary to consider further measures to implement the judgment which may include a new practice direction and circulars to court staff

The Deputies took note of the information submitted by the authorities, including the report of measures already adopted and the additional action plan envisaged, and decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of the further information to be provided by the authorities in this regard.

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.


 Top

 

  Related Documents
 
   Meetings
 
   Other documents