Ministers’ Deputies
Decisions

CM/Del/Dec(2009)1059 19 June 2009
Volume – RESOLUTIONS
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1059th meeting (DH), 2-4 and 5 (morning) June 2009

Resolutions adopted


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CONTENTS

Resolution CM/ResDH(2009)65 3
Göktepe against Belgium 3

Resolution CM/ResDH(2009)66 6
Lambert and Matheron against France 6

Resolution CM/ResDH(2009)67 9
Taïs against France 9

Resolution CM/ResDH(2009)68 12
Liakopoulou, Efstathiou and others, Lionarakis, Zouboulidis and Koskina and others against Greece 12

Resolution CM/ResDH(2009)69 15
Valovà, Slezàk and Slezàk against Slovak Republic 15

Resolution CM/ResDH(2009)70 17
Klemeco Nord AB and Rey and others against Sweden 17

Resolution CM/ResDH(2009)71 20
Ospina Vargas, Leo Zappia, Bastone, Campisi, Di Giacomo, and Cavallo against Italy 20

Resolution CM/ResDH(2009)72 22
Matteoni and Vadalà against Italy 22

Resolution CM/ResDH(2009)73 25
Bíro and Klimek against Slovak Republic 25

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)651

Execution of the judgment of the European Court of Human Rights
Göktepe against Belgium

(Application No. 50372/99, judgment of 2 June 2005, final on 2 September 2005)

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

Having regard to the judgment in this case, transmitted by the Court once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns unfairness of criminal proceedings against the applicant due to the lack of individual examination of the question of the extent of the applicant's guilt (violation of Article 6 § 1) (see details in Appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

    DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)65

Information about the measures to comply with the judgment in the case of
Goktepe against Belgium

    Introductory case summary

The case concerns the unfairness of criminal proceedings against the applicant, accused with two others of robbery with violence having caused the death of a victim. The proceedings resulted in all the accused being sentenced to 30 years' imprisonment by a final judgment of the Eastern Flanders Assize Court of 27/11/1998.

The European Court considered that the Assize Court’s refusal (confirmed by the Cour de cassation) to formulate individual questions to the jury on the existence of aggravating circumstances, considering that these circumstances applied equally to all those who had taken part in the robbery, infringed the right of the applicant to defend himself in a practical and effective manner with respect to a decisive issue (violation of Article 6 § 1). According to the case-law of the Belgian Cour de cassation, the president of the Assize Court could, on the basis of his discretionary power, decide that questions concerning real aggravating circumstances of a crime attributed to co-defendants would be formulated individually in respect of each of them (§ 22 of the judgment).

    I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3 000 euros

2 864 euros

5 864 euros

Paid on 29/09/2005

b) Individual measures

    1) Possibility of reopening the criminal proceedings:

    a) Adoption of the Law of 01/04/2007

Given the gravity of the applicant’s conviction following proceedings found unfair by the European Court, reopening of the proceedings seemed to be the best measure to remedy the violation and erase its consequences. Nevertheless at the time when the European Court’s judgment was transmitted to the Committee of Ministers, Belgian law did not provide the possibility of reopening criminal proceedings following a judgment of the European Court. Thus the adoption of individual measures in this case required a legislative change.

Consequently, the Law of 01/04/2007 amending the Criminal Investigation Code so as to permit the reopening of criminal proceedings was adopted on 01/04/2007 and entered into force on 01/12/2007. On the basis of this law, provisions enabling reopening of criminal proceedings following a judgment of the European Court have been introduced in the Criminal Investigation Code.

    b) Relevant provisions of the Law

Following a violation of the Convention, application may be made to reopen proceedings in cases resulting in the conviction of the applicant or of another person for the same offence and on the basis of the same evidence (new Article 442 bis). Such application may be made by the person convicted or his or her beneficiaries, or by the Prosecutor General before the Cour de cassation either of their own motion or at the request of the Minister of Justice (Article 442 ter). Requests to reopen must be lodged within the 6 months following the date upon which the European Court's judgment becomes final, and are examined by the Cour de cassation (Article 442 quater), which orders the reopening of the proceedings if it considers that the applicant or his or her beneficiaries continue to suffer from very serious negative consequences and the decision at issue on its merits is contrary to the Convention, or if the violation found arose from mistakes or procedural shortcomings so serious as to raise significant doubt regarding the outcome of the proceedings at issue (Article 442 quinquies).

    c) Transitional measures provided by the Law and applicable to the present case

Article 13 provides that, if the execution of a judgment of the European Court is still pending before the Committee of Ministers, the application for reopening proceedings must be lodged within six months of the entry into force of the Law.

By letter of 09/05/2007, the Federal Justice Service informed the applicant’s counsel of the possibility for the applicant to lodge a request to have the proceedings reopened on the basis of this Article.

    2) Applicant’s release on parole:

By a decision of 03/05/2007 the Ghent Court of First Instance ordered the applicant’s release on parole.

    II. General measures

The European Court’s judgment has been examined by a group of judges in the framework of an expert group on criminal procedure within the Collegium of Prosecutors General. The judgment has been notified to the Collegium of Prosecutors General to be sent out to the country's appeal courts, to the Federal Prosecutor and to the Prosecutor at the Cour de cassation.

Since the broad dissemination of this judgment to courts, Assize Court's presidents formulate individual questions to juries regarding objective aggravating circumstances.

III. Conclusions of the respondent state

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

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)662

Execution of the judgment of the European Court of Human Rights
Lambert and Matheron against France

(Lambert, Application No. 23618/94, judgment of 24 August 1998,
Matheron, Application No. 57752/00, judgment of 29 March 2005, final on 29 June 2005)

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

Having regard to the judgment in this case, transmitted by the Court once it had become final;

Recalling that the violations of the Convention found by the Court in these cases concern breaches of the applicants’ right to respect for their private life and correspondence (violation of Article 8) as they were unable to contest the legality of telephone intercepts placed in their files, the conversation having taken place on someone else’s telephone line (Lambert) or in the context of a case to which the applicant was not party (Matheron) (see details in Appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

    DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)66

Information about the measures to comply with the judgment in the cases of
Lambert and Matheron against France

    Introductory case summary

These cases concern the refusal of the Cour de cassation to allow the applicants, charged respectively with handling the proceeds of aggravated theft in 1992 and drugs offences in 1994, to contest the legality of the inclusion of transcriptions of telephone intercepts in their case-files. In the Lambert case, the objection was based on the fact that the telephone line which was tapped was not his own, and in the Matheron case on the fact that the tapping was carried out in proceedings to which the applicant was not party (violations of Article 8).

The European Court considered that the reasoning followed by the Cour de cassation might tend to withdraw the protection of the law either from any person conducting a telephone conversation using a line other than their own (Lambert) or from those facing accusations arising from telephone tapping carried out in cases not concerning them, thus depriving the protection provided by national law of much of its substance. The Court thus considered that the applicants had not enjoyed “effective supervision” such as to limit the interference at issue to what is necessary in a democratic society.

    I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Application and No.

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Lambert, 23618/94

10 000 FF

 

15 000 FF

25 000 FF

Paid on 13/04/1999 with default interest

Matheron, 57752/00

3 000 EUR

 

5 000 EUR

9 000 EUR

Paid on 15/12/2005 with default interest

b) Individual measures

The possibility to request reopening their cases was available to the applicants under section L626-1 of the Code of Criminal Procedure.

    II. General measures

The European Court did not call into question the legal grounds for telephone tapping, found to be in conformity with the requirements of Article 8 of the Convention.

In view of the direct of the direct effect given to the Convention by French courts, and in order to encourage courts to take due account of these judgments, they have been published and sent out to the relevant authorities. In addition they have been the subject of commentaries in various specialist journals, in particular CREDHO No. 5/1999 (Lambert) and the Quarterly Human Rights Review No. 66 of 1 April 2006.

Following the judgment in Lambert, the Cour de cassation has progressively adapted is case-law.

Initially, in a judgment of 15 January 2003 (Cass. Crim., 15 January 2003, Appeal No. 02-87.341) the Criminal Chamber established that any person charged with an offence has the right to contest telephone intercepts resulting from the tapping of other people’s lines. However, it rejected the idea of examining the legality of intercepts carried out in a different investigation.

Subsequently, in order to take account of the European Court’s judgment in the Matheron case, the Cour de cassation, in a dismissal judgment dated 7 December 2005, (Cass. Crim., 7 December 2005, Appeal No. 05-85.876) accepted that the investigating chamber might examine the lawfulness of telephone intercepts carried out in separate proceedings but attached to the file of the case under examination. In this context the investigating chamber must check in particular: the aim of the intercept ordered, whether it is in accordance with the rules, whether it is necessary and whether the interference in the subject’s privacy is proportionate in view of the severity of the alleged offence. The case-law of the Cour de cassation has remained constant since this judgment.

The Cour de cassation reported widely on its new case-law: the judgment of 7 December 2005 was the subject of a commentary in its annual report for that year, and the development of the case-law was traced in the annual report for 2006.

    III. Conclusions of the respondent state

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

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)673

Execution of the judgment of the European Court of Human Rights
Taïs against France

(Application No. 39922/03, judgment of 1 June 2006, final on 1 September 2006)

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

Having regard to the judgment in this case, transmitted to the Committee by the Court once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern first, the lack of plausible explanation as to the cause of the injuries that resulted in the death of the applicants’ son, while he was detained, and the inertia of the police officers in the face of his physical and mental distress and lack of effective police and medical supervision (substantive violation of Article 2) and secondly, the lack of an effective – particularly a quick – investigation into the circumstances surrounding the death (procedural violation of Article 2) (see details in appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

    DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)67

Information about the measures to comply with the judgment in the case of
Taïs against France

    Introductory case summary

This case concerns the death of Mr Pascal Taïs, the applicants' son, in 1993 while he was detained in a police cell in which he had been placed overnight to sober up.

The European Court found that the government had not been able to provide a plausible explanation for the discrepancy, or even contradiction, between the medical report drawn up when discharging the applicants' son from hospital and the autopsy report, and regarding the cause of the injuries found on his body, given in particular that the injuries could in any event only have occurred during his detention (§ 95); furthermore, the inertia of the police officers confronted with physical and mental distress of the applicant's son, and the lack of effective police and medical supervision, had constituted a violation of France's obligation to protect the lives of persons in custody (violations of the substantive aspect of Article 2).

The European Court also found that the French authorities had not conducted an effective and particularly a quick investigation into the circumstances surrounding the death of the applicants' son (procedural violation of Article 2). To reach this conclusion, the Court first took account of the fact that the investigation had been too long and had failed to establish the actual cause of Pascal Taïs’s death, the uncertainty in this respect growing with the passing of time (the Court in particular underlined the fact that certain steps of the investigation had been taken too late). The Court also took into account the facts that no detailed evidence had been taken from the girlfriend of the deceased, who twice failed to respond to summonses issued by the judge, even though she had been at the police station on the night of the incident, that the investigating judge had refused to allow a reconstruction of the events, the conduct of a post-mortem psychological inquiry of dubious utility in establishing the truth and which was negative as regards the deceased, stressing inter alia the theory of a suicide and the importance given to it .

    I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

50 000 EUR

20 000 EUR

70 000 EUR

Paid on 21/12/20064

b) Individual measures

In its judgment, the Court itself “noted that it is impossible for the applicants to obtain an effective enquiry or adequate compensation” and granted them 50 000 EUR as just satisfaction in respect of the non-pecuniary damage sustained.

Following this judgment, the Public Prosecutor, in accordance with his competence under Article 190 of the Code of Criminal Procedure, examined and on 12 January 2007 rejected the applicants’ request for a new investigation. The Public Prosecutor held that he did not have enough new grounds to change the initial conclusion of the investigation, i.e. that there were no sufficient charges against anyone.

Moreover, the government underlined that several other elements make it objectively impossible to rectify the shortcomings of the original investigation. By definition, it is not possible to change the fact that the investigation has been too long, nor that the investigating judge went too late to the scene to examine it (he went there but, even at that time, it did not help in understanding the reasons for the victim’s death), nor finally that the post-mortem psychological inquiry had been carried out. Furthermore, a reconstitution of the events would be objectively impossible, as the cell in which the events occurred does no longer exists as it was at the material time, works having been carried out between 1997 and 1998, i.e. since the material time. As to Mr. Pascal Taïs’ girlfriend, she has no known address.
In this context, the Ombudsman (“Médiateur de la République”, an independent authority which does not accept instructions from any other authority according to Law 73-6 of 3 January 1973) and the National Human Rights Advisory Board (“Commission nationale consultative des droits de l'Homme”, another independent authority, giving advice and making proposals to the government, in particular in the field of Human Rights) made a joint communication to the Committee of Ministers under Rule 9 of the Rules of the Committee of Ministers for the supervision of the execution of judgments of the terms of friendly settlements.

On 20 May 2009, Mr. Taïs informed the Committee of Ministers that following the decision of the Prosecutor, he ordered a private investigation (recorded in a report of 10 January 2009), which could according to him “facilitate a new judicial investigation”. In this respect, the government underlines that if he so wishes, of course the applicant could bring the results of such an investigation to the attention of the competent magistrates. In that case, they would have to reach a decision again. If new charges appear, it would still be possible to reopen the investigation, until the facts at issue are time-barred.

    II. General measures

Measures have been taken to make the European Court’s findings public so as to avoid new, similar violations.

The judgment has been brought to the attention of competent judges. It was sent to the First President of the Court of Cassation and to the Public Prosecutor before the same Court (as well as to the Public Prosecutor before the Court of Appeal of Bordeaux, which was concerned in this case). It was also presented in the Bulletin d’information de la cour de cassation (BICC) No. 643 of 1 July 2006 and in La Cour européenne des Droits de l’Homme – 2006 – Arrêts concernant la France et leurs commentaires, a publication of the Observatoire du droit européen (Cour de cassation, July 2007). Finally, several articles have been published on this judgment in widely distributed law journals.

The attention of the police has also been drawn to this judgment, which is commented upon during police officers' training, to draw the consequences of this judgment in their work and to avoid new, similar violations. The judgment was also published and commented in the September/October 2006 issue of the Legal Bulletin of the Ministry of Interior. This bulletin is available on the intranet site of the Ministry, to which all the Ministry (including police) and Préfecture officials have access.

More generally speaking, the French government recalled first, that it has maintained considerable efforts for several years, taking into account the CPT's recommendations, to improve conditions of detention on remand. For example, a Circular which was issued on 11 March 2003 sets out measures to “modernise professional practice and the means devoted to detention on remand (…) in order to guarantee respect for the dignity of detainees”. Second, the government recalls that Law 2000-494 of 6 June 2000 created the National Commission for Policing Ethics (Commission Nationale de Déontologie de la Sécurité, www.cnds.fr), an independent authority entrusted with the mission of supervising respect of ethics by all those working in the field of security within the French republic, including the police.

Finally, it may be noted that the Director General of the Police requested the National Police General Inspectorate (Inspection Générale de la Police Nationale) in December 2006, together with the ministries concerned and the medical doctors’ professional body, to carry out a study on placement in cells for sobering up. It was requested that this study “evaluate how the police take account of the rules on handling persons in a state of inebriation, to analyse the shortcomings and the difficulties encountered and to make proposals for reform.

    III. Conclusions of the respondent state

The government considers that in the present case, all possible individual measures have been taken, that the general measures will prevent new, similar violations and that France has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)685

Execution of the judgments of the European Court of Human Rights
Liakopoulou, Efstathiou and others, Lionarakis, Zouboulidis and
Koskina and others against Greece

(Liakopoulou, application No. 20627/04, judgment of 24 May 2006, final on 23 October 2006,
Efstathiou and others, application No. 36998/02, judgment of 27 July 2006, final on 11 December 2006
Lionarakis, application No. 1131/05, judgment of 5 July 2007, final on 5 October 2007,
Zouboulidis, application No. 77574/01, judgment of 14 December 2006, final on 14 March 2007
Koskina and others, application No.2602/06, judgment of 21 February 2008, final on 21 May 2008)

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

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

Recalling that the violations of the Convention found by the Court in these cases mainly concern the disproportionate constraint on the applicants' right of access to a court, based to an excessively formalistic approach which had prevented the applicants from having the merits of their allegations examined by the Court of Cassation (violation of Article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - general measures preventing, similar violations;

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

    DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2009)68

Information about the measures to comply with the judgments in the cases of
Liakopoulou, Efstathiou and others, Lionarakis, Zouboulidis and
Koskina and others against Greece

    Introductory case summary

These cases concern the disproportionate constraint on the applicants' right of access to a court, in that the Court of Cassation, applying a principle enshrined in its case-law concerning the vague character of the grounds of appeal, dismissed their appeals between 2001 and 2005 on the ground that they had not specified the factual circumstances on which the courts of appeal had based their judgments.
The European Court considered that the facts of the case as established by the court of appeal had been brought to the attention to the Court of cassation, as in all cases the appeal court judgments at issue had been appended to the cassation appeals. In declaring the grounds of appeal inadmissible on the ground that the applicants “had not specified clearly the facts of the case on which the court of appeal had based its decision” in these cases, in which the central facts had not been particularly complicated, the Court of Cassation had taken an excessively formalistic approach which had prevented the applicants from having the merits of their allegations examined by that court (violations of Article 6§1).
The Lionarakis case also relates to a breach of the applicant's right to freedom of expression, because a civil court found against him in defamation proceedings for having allowed a participant in the radio programme he presented to use allegedly insulting expressions (violation of Article 10).

    I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application No.

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Paid on

Liakopoulou (No. 20627/04)

-

5 000 euros

-

5 000 euros

09/02/2007
applicant waived interest in view of small amount

Efstathiou and others
(No. 36998/02)

-

25 000 euros

-

25 000 euros

23/03/2007
applicants waived interest in view of small amount

Lionarakis
(No. 1131/05)

42 238 euros

-

7 000 euros

49 238 euros

27/12/2007

Zouboulidis
(No. 77574/01)

-

5 000 euros

500 euros

5 500 euros

8/06/2007

Koskina and others
(No. 2602/06)

-

5 000 euros

-

5 000 euros

29/05/2008

b) Individual measures

In the Lionarakis case, the European Court awarded to the applicant just satisfaction in respect of pecuniary damages suffered. The amount covered the sum of damages the applicant was ordered to pay in the defamation proceedings at issue and to the legal fees for the proceedings before the Court of Cassation.

In the other cases, the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. Considering the nature of the violations, the absence of any very serious consequences for the applicants and the fact that their cases had been considered on the merits at both first instance and appeal, the reopening of the proceedings at issue does not appear an appropriate means of achieving the effective implementation of these judgments. In these cases, the aim of fully erasing the consequences of the violations found does not seem to prevail over the principle of legal certainty and of protection of the rights of third parties’ of good faith. Furthermore, it should be noted that as regards the case of Efstathiou and others, the applicants had passed the maximum retirement age (65), since at the time of delivery of the European Court's judgment and consequently, the domestic courts could no longer reinstate them in their employment, had the applicants been successful before the Court of Cassation.

    II. General measures

1) Violations of Article 6§1: In these cases the violations emanated from an application by the Court of Cassation of a principle enshrined in its case-law concerning the vague character of the grounds of appeal. Having regard to the direct effect the European Court's case-law enjoys in Greek law (see e.g. appendix to Final Resolution ResDH(2004)2 on Agoudimos and Cefallonian Sky Shipping Co), the publication and the dissemination of the judgments appear to be sufficient execution measures. The judgments in all these cases have been disseminated broadly to all judicial authorities and the translation into Greek of the texts of the judgments have been placed on the Internet site of the Legal Office of the State (www.nsk.gr).

2) Violation of Article 10: It is noted that the direct effect of Article 10 in the field of freedom of the press has been expressly recognised in recent Greek case-law (see Council of State judgment 253/2005).

    III. Conclusions of the respondent state

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

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)696

Execution of the judgment of the European Court of Human Rights
Valovà, Slezàk and Slezàk against Slovak Republic

(Application No. 44925/98, judgment of 1 June 2004, final on 1 September 2004 and
judgment of 15 February 2005 – Friendly settlement, Article 41)

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

Having regard to the judgments in this case, transmitted to the Committee by the Court once they had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a breach of the applicants’ rights to a peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1)(see details in Appendix);

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

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

Having satisfied itself that, within the time-limit agreed to under the terms of the friendly settlement on the application of Article 41, the respondent state paid the applicants the sum provided in the friendly settlement (see details in Appendix),

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

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

      - of general measures, preventing similar violations;

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

    DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)69

Information about the measures to comply with the judgment in the case of
Valovà, Slezàk and Slezàk against Slovak Republic

    Introductory case summary

This case concerns the violation of the applicants' right to a peaceful enjoyment of their possessions in that a decision of June 1994 by the administrative authorities to reopen proceedings which had led to the recognition of the applicants' right of property was not in conformity with the "conditions provided for by law” (violation of Article 1 of Protocol No. 1).

    I. Payment of the sum agreed to under the terms of the friendly settlement on the application of Article 41 and individual measures

Under the friendly settlement concluded on 21 October 2004 on the application of Article 41, the parties agreed that the payment of a global sum of 20 000 euros, taken together with the agreement on the restitution of the property in question, would constitute a final resolution of the case. The sum agreed was paid on 15 May 2005, within the time limit agreed to under the terms of the friendly settlement. The authorities confirmed that the property was restored in 2004.

    II. General measures

Since it was the national authorities' application of the relevant provisions of domestic law which was challenged in this case, and taking into account the development of the direct effect of the Convention and of the case-law of the European Court at national level (see decisions of the Supreme Court Nos. Ntv I - 19/02 and Ntv I - 20/02 of 10/01/03), the dissemination of the judgment of the European Court to the competent authorities seems to be a relevant and sufficient measure for the prevention of new, similar violations. The judgment was published in Justičná Revue, issue No. 6-7/2004. It was sent out to the competent administrative authorities (regional land offices), together with a circular letter from the Minister of Justice. In addition, the presidents of the regional land offices were invited to send the judgment to district land offices for information.

    III. Conclusions of the respondent state

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

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)707

Execution of the judgments of the European Court of Human Rights
Klemeco Nord AB and Rey and others against Sweden

(Application No. 73841/01 and No. 17350/03, judgments of 19 December 2006 and of 20 December 2007, final on 19 March 2007 and on 20 March 2008)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the excessive length of civil proceedings (violations of Article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

    DECIDES to close their examination.

Appendix to Resolution CM/ResDH(2009)70

Information about the measures to comply with the judgments in the cases of
Klemeco Nord AB and Rey and others against Sweden

    Introductory case summary

These cases concern the excessive length of civil proceedings. The proceedings began in 1993 and 1995 and ended in 2000 and 2002 respectively (violations of Article 6§1).

    I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Klemeco Nord AB 73841/01

-

2 000 euros

500 euros

2 500 euros

Paid on 14/06/2007

Rey and others
17350/03

-

4 000 euros

-

4 000 euros

Paid on 23/05/2008

b) Individual measures

No individual measure is necessary since the proceedings in question are closed and the European Court has awarded just satisfaction in respect of non-pecuniary damage suffered by the applicants on account of the excessive length of these proceedings.

    II. General measures

1) The excessive length of proceedings
The judgments have been published together with a summary in Swedish on the government's website (www.manskligarattigheter.gov.se <http://www.manskligarattigheter.gov.se>) and on the website of the National Courts Administration (www.domstol.se <http://www.domstol.se>). They have been sent out to the Swedish Supreme Court, the Courts of Appeal, the two District Courts concerned, the Parliamentary Ombudsmen and the Chancellor of Justice. The length of civil proceedings does not appear to be a systematic problem in Sweden. Therefore, publication and dissemination to relevant authorities together with the direct effect given to the Convention are sufficient measures for the execution and for the prevention of other similar violations.

2) Effective remedies available to challenge the length of proceedings
The following remedies exist to challenge excessive length of proceedings:
a) criminal and family law cases are tried, in practice, with particular swiftness given that the stake for the parties in such proceedings is high;
b) parties in civil proceedings may appeal against decisions of district courts they consider to be at the origin of an excessive length in the proceedings and obtain the quashing of the incriminated decision by the court of appeal (Chapter 49, Section 7 of the Code of Judicial Procedure);
c) the excessive length of criminal proceedings is taken into account at the time of the determination of the sanction and may justify the imposition of a more lenient punishment (Chapter 29, Section 5 and Chapter 30, Section 4 of the Criminal Code);
d) the Parliamentary Ombudsmen and the Chancellor of Justice exercise control over the conduct of proceedings before the public authorities, including the courts;

e) individuals are entitled to compensation for any loss or damages caused by the excessive length of proceedings, pursuant to the 1972 Tort Liability Act. The authorities referred to several decisions of the Supreme Court and to one decision of the Chancellor of Justice, delivered between 2005 and 2007, as an illustration that compensation has been awarded to individuals to redress the damage they had suffered due to the excessively lengthy court proceedings, including civil proceedings.

    III. Conclusions of the respondent state

The government considers that no individual measure is needed in these cases, apart from the payment of the just satisfaction awarded by the European Court, that the general measures set out above will prevent other similar violations and that Sweden has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

Section 1.2

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)718

Execution of the judgments of the European Court of Human Rights
Ospina Vargas, Leo Zappia, Bastone, Campisi, Di Giacomo, and Cavallo
against Italy

(Application No. 40750/98, 77744/01, 59638/00, 24358/02, 25522/03 and 9786/03,
judgments of 14 October 2004, 29 September 2005, 11 July 2006, 11 July 2006, 24 January 2008
and 4 March 2008, final on 14 January 2005, 29 December 2005, 11 October 2006, 11 October 2006,
24 April 2008 and 4 June 2008 respectively)

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

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

Recalling that the Court found:

- in all these cases, violations of the applicants’ right to respect for private life following the arbitrary monitoring of their correspondence during their detention due to shortcomings in the Prison Administration Act No. 354/1975 (violations of Article 8);

- in one of these cases (Di Giacomo) a violation of Article 13 due to the lack of effective remedy against the decisions ordering monitoring of prisoners' correspondence (see details in Appendix);

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

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

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

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

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

      - general measures preventing, similar violations;

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

    DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2009)71

Information about the measures to comply with the judgments in the cases of
Ospina Vargas, Leo Zappia, Bastone, Campisi, Di Giacomo, and Cavallo against Italy

    Introductory case summary

These cases concern the violation of the applicants’ right to respect for their private life resulting from the arbitrary monitoring of prisoners' correspondence during their detention (violation of Article 8) due to shortcomings in the Prison Administration Act No. 354/1975 in force at the material time (May 1995 – December 2003). This law allowed too much latitude, in particular with regard to the imposition of monitoring of correspondence and to its duration and, in addition, did not explicitly prohibit the monitoring of correspondence with the Convention organs. In the Ospina Vargas case, the Court also held that the interception of a package containing a book adressed to the applicant and the prison’s authorities’ decision not to hand it over to him was also in violation of Article 8.
Moreover, in the Di Giacomo case, the Court found a violation of Article 13 due to the lack of an effective remedy against the decisions ordering monitoring of prisoners' correspondence.

    I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

OSPINA VARGAS
40750/98

-

-

5 000 euros

5 000 euros

Paid on 13/04/2005

In the other cases, either the applicants submitted no claim in respect of just satisfaction or the Court held that the finding of a violation of the Convention constituted in itself sufficient just satisfaction.

b) Individual measures

No individual measures were required, in view of the new legislation adopted in Italy (see general measures).

    II. General measures

Law No. 95/2004, which entered into force as from 15 April 2004, amended the Prison Administration Act No. 354/1975 which was at the origin of the violations found by the Court. The current legislation provides clear grounds for imposing monitoring or restriction of prisoners' correspondence and time-limits for such measures. It also provides that correspondence with the Convention organs is exempt from monitoring and extends judicial review to cover the monitoring or restriction of prisoners' correspondence. It is now possible to lodge a complaint before a sentence execution court against a decision concerning monitoring or restriction of correspondence (see resolution ResDH(2005)55 adopted on 5/07/2007 ending the examination of certain cases similar to the present cases, in particular the Calogero Diana case). Italian authorities also adopted administrative measures to ensure effective implementation of the new legislative provisions.

    III. Conclusions of the respondent state

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

Section 1.2

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)729

Execution of the judgments of the European Court of Human Rights
Matteoni and Vadalà against Italy

(Application No. 42053/02, judgment of 8 June 2006, final on 8 September 2006
Application No. 51703/99, judgment of 20 April 2004, final on 20 July 2004)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern violations of the applicants’ rights throughout proceedings to establish their bankruptcy, such as the supervision of their correspondence and the prohibition from leaving their area of residence without judicial permission (violations of Article 8 and Article 2 of Protocol No.4) (see details in Appendix);

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

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

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

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

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

      - general measures preventing, similar violations;

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

    DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2009)72

Information about the measures to comply with the judgments in the cases of
Matteoni and Vadalà against Italy

    Introductory case summary

These cases concern restrictions imposed on the personal capacity of the applicants during the whole of the bankruptcy proceedings brought against them.

In order to protect the rights of third parties, the Royal Decree No. 267 of 16/03/1942 provided a number of personal restrictions on bankrupts, such as supervision of their correspondence and prohibition from leaving their area of residence without judicial authorisation.

The European Court observed that the bankruptcy proceedings against the applicants lasted more than 14 and 16 years respectively, which resulted in upsetting the fair balance which should be struck between the general interest of the creditors to be paid and the individual interest of the bankrupts with regard to the protection of their rights to respect for correspondence and free movement (violation of Articles 8 and 2 of Protocol No. 4).

    I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

MATTEONI
42053/02

-

25 000 euros

4 000 euros

29 000 euros

 

Paid on 7/12/2006

VADALA
51703/99

-

20 000 euros

3 000 euros

23 000 euros

 

Paid on 24/09/2004

b) Individual measures

The restrictions imposed on the applicants have been lifted by Legislative Decree No. 5/2006 (see below).

    II. General measures

Legislative Decree No. 5/2006, adopted in January 2006, resolved the questions raised in the European Court's judgments in these cases. The decree brought about a number of changes to remedy the violations found, in particular:

- Respect for correspondence (Article 48 of the Decree): The bankrupt now receives all his correspondence and is obliged to transmit to the liquidator only communications concerning the bankruptcy proceedings, whereas prior to the reform all letters were diverted directly to the liquidator;

- Freedom of movement (Article 49): The only obligation remaining for the bankrupt is to inform the competent authorities of any change of residence, whereas formerly he could not leave his area of residence without authorisation from the authorities;

For further details see Interim Resolution CM/ResDH(2007)27 “Bankruptcy proceedings in Italy: progress achieved and problems remaining in the execution of the judgments of the European Court of Human Rights”, adopted by the Committee of Ministers on 4 April 2007.

    III. Conclusions of the respondent state

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

Section 1.2

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2009)7310

Execution of the judgments of the European Court of Human Rights
Bíro and Klimek against Slovak Republic

(Application No 46844/99 and 60231/00, judgments of 8 November 2005 and 17 June 2003,
final on 15 February 2006 and 17 September 2003)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the excessive length of certain civil proceedings (violations of article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

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

    DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2009)73

Information about the measures to comply with the judgments in the cases of
Bíro and Klimek against Slovak Republic

    Introductory case summary

These cases relate to the excessive length of certain civil proceedings which began between 1994 and 1998 (violations of Article 6, paragraph 1).

    I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Paid on

Bíro No.46844/99

-

10,000 Euros

300 Euros

10,300 Euros

27/04/2007

Klimek No. 60231/00

-

4,000 Euros

-

4,000 Euros

19/12/2003

applicant waived interest in view of small amount

b) Individual measures

The domestic proceedings the excessive length of which was impugned by the European Court in these cases were ended between 1998 and 2008.

    II. General measures

General measures have already been adopted to improve the efficiency of the judicial system and avoid new violations, particularly in the context of the examination of the Jóri case (judgment of 09/11/2000) closed by Resolution ResDH(2005)67 (cf. in particular the amendment to the Constitution brought about in 2001 which introduces a constitutional petition for complaints of violations of human rights protected by international treaties; the adoption of Act No. 501/2001 which reduces the number of cases in which second-instance courts are competent at first instance and aims to accelerate the gathering of evidence; the adoption of Act No. 385/2000 which regulates the civil and disciplinary liability of judges for unjustified delays in their cases).
The Committee of Ministers is at present supervising the execution of several judgments of the Court (in particular the judgment of Jakub 28 February 2006), finding in particular a violation of Article 6, paragraph 1 of the Convention on account of the excessive length of civil proceedings. Within the framework of these cases, the Committee supervises the adoption of the outstanding general measures. In this context, the Slovak authorities have indicated to the Committee of Ministers new measures that they have taken or were envisaging (in particular measures aimed at improving the structural organisation of the judiciary and legislative measures, as well as measures aimed at enhancing the efficiency of the constitutional petition against the excessive length of judicial proceedings) in order to put to an end the problem of excessive length of proceedings, so as to prevent other violations similar to those already found.

    III. Conclusions of the respondent state

The government considers that no individual measure is necessary in these cases, apart from the payment of the just satisfaction awarded by the Court. It also considers that all the measures taken show the efforts made to avoid excessive length of proceedings before Civil Courts. The government will continue to make all the necessary efforts, under the supervision of the Committee, to avoid new, similar violations. The government concludes that it has thus complied with its obligations under Article 46 paragraph 1 of the Convention in the present cases.

1 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies

2 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies

3 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies

4 The applicants gave up part of the default interest.

5 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies

6 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies

7 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies

8 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies

9 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies

10 Adopted by the Committee of Ministers on 19 June 2009 at the 1059th meeting of the Ministers’ Deputies


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