Ministers’ Deputies
Decisions

CM/Del/Dec(2011)1128 - Volume resolutions     6 December 2011

1128th meeting (DH), 29 November-2 December 2011

Decisions adopted

Volume of Resolutions

CONTENTS

Resolution CM/ResDH(2011)185 9
Paykar Yev Haghtanak against Armenia 9

Resolution CM/ResDH(2011)186 12
Ajtnik and others against Austria 12

Resolution CM/ResDH(2011)187 13
Schelling, Birnleitner, Bakker, Abrahamian, Brugger, Emmer-Reissig and Hofbauer (No. 2)
against Austria
13

Resolution CM/ResDH(2011)188 17
Achleitner, Brunnthaler, Prischl, Bösch, Geyer and Müller against Austria 17

Resolution CM/ResDH(2011)189 22
in 21 cases against Belgium concerning the excessive length of certain civil proceedings,
in particular before the Brussels Court of Appeal
22

Resolution CM/ResDH(2011)190 26
Stratégies et Communications and Dumoulin against Belgium and Garsoux and Massenet
against Belgium
26

Resolution CM/ResDH(2011)191 28
Čonka against Belgium 28

Resolution CM/ResDH(2011)192 32
Kalkanov against Bulgaria 32

Resolution CM/ResDH(2011)193 34
Hasan and Chaush and Supreme Holy Council of the Muslim Community against Bulgaria 34

Resolution CM/ResDH(2011)194 37
Olujić against Croatia 37

Resolution CM/ResDH(2011)195 42
Peša and 2 other cases against Croatia 42

Resolution CM/ResDH(2011)196 49
Kyriakades and Taliadorou and Stylianou against Cyprus 49

Resolution CM/ResDH(2011)197 51
Kafkaris against Cyprus 51

Resolution CM/ResDH(2011)198 54
Topp against Denmark 54

Resolution CM/ResDH(2011)199 55
in 4 cases against Denmark 55

Resolution CM/ResDH(2011)200 56
Amrollahi against Denmark 56

Resolution CM/ResDH(2011)201 58
Kallio and Hannu Lehtinen against Finland 58

Resolution CM/ResDH(2011)202 60
Juppala against Finland 60

Resolution CM/ResDH(2011)203 62
Leino against Finland 62

Resolution CM/ResDH(2011)204 63
in 2 cases against Finland 63

Resolution CM/ResDH(2011)205 64
W., A.H., D. and A.L. against Finland 64

Resolution CM/ResDH(2011)206 66
Natunen against Finland 66

Resolution CM/ResDH(2011)207 68
Matheus against France 68

Resolution CM/ResDH(2011)208 71
Bousarra against France 71

Resolution CM/ResDH(2011)209 73
Brusco against France 73

Resolution CM/ResDH(2011)210 76
Siliadin against France 76

Resolution CM/ResDH(2011)211 80
Mouisel and Henaf against France 80

Resolution CM/ResDH(2011)212 81
Krombach and Mariani against France 81

Resolution CM/ResDH(2011)213 83
Haase against Germany 83

Resolution CM/ResDH(2011)214 86
Sakewitz against Germany 86

Resolution CM/ResDH(2011)215 87
Böhmer against Germany 87

Resolution CM/ResDH(2011)216 89
Mooren against Germany 89

Resolution CM/ResDH(2011)217 92
Azas, Athanasiou and others, Biozokat A.E., Efstathiou and Michailidis and Cie Motel Amerika,
Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E.,
Ouzounoglou and Zacharakis against Greece
92

Resolution CM/ResDH(2011)218 96
Ouranio Toxo and others against Greece 96

Resolution CM/ResDH(2011)219 99
Karapanagiotou and others against Greece 99

Resolution CM/ResDH(2011)220 102
Pistolis and others against Greece 102

Resolution CM/ResDH(2011)221 104
Bigaeva against Greece 104

Resolution CM/ResDH(2011)222 106
Imre, Maglódi, Csáky and Bárkányi against Hungary 106

Resolution CM/ResDH(2011)223 109
Kjartan Ásmundsson against Iceland 109

Resolution CM/ResDH(2011)224 112
Four cases against Ireland 112

Resolution CM/ResDH(2011)225 117
Bogdanovs-Migalevs against Latvia 117

Resolution CM/ResDH(2011)226 118
in 2 cases against Latvia 118

Resolution CM/ResDH(2011)227 119
Freimanis and Līdums, Nazarenko, Vogins, and Ž. against Latvia 119

Resolution CM/ResDH(2011)228 122
Simonavičius, Gečas, Norkunas and Novikas against Lithuania 122

Resolution CM/ResDH(2011)229 124
in 5 cases against Lithuania 124

Resolution CM/ResDH(2011)230 125
Juozaitienė and Bikulčius against Lithuania 125

Resolution CM/ResDH(2011)231 128
Ramanauskas and Malininas against Lithuania 128

Resolution CM/ResDH(2011)232 132
Micallef against Malta 132

Resolution CM/ResDH(2011)233 134
Nakach and Schenkel against Netherlands 134

Resolution CM/ResDH(2011)234 137
TV Vest As and Rogaland Pensjonistparti against Norway 137

Resolution CM/ResDH(2011)235 141
Hammern against Norway 141

Resolution CM/ResDH(2011)236 145
in 2 cases against Norway 145

Resolution CM/ResDH(2011)237 146
Folgerø and others against Norway 146

Resolution CM/ResDH(2011)238 149
Zawadka against Poland 149

Resolution CM/ResDH(2011)239 151
Tabor and 6 other cases against Poland 151

Resolution CM/ResDH(2011)240 153
Rybacki against Poland 153

Resolution CM/ResDH(2011)241 156
Kita against Poland 156

Resolution CM/ResDH(2011)242 158
Feliciano Bichao case against Portugal 158

Resolution CM/ResDH(2011)243 161
Perdigão against Portugal 161

Resolution CM/ResDH(2011)244 163
Rosu against Romania 163

Resolution CM/ResDH(2011)245 164
8 cases against Romania concerning the quashing of final court decisions 164

Resolution CM/ResDH(2011)246 167
SC Plastik ABC SA against Romania 167

Resolution CM/ResDH(2011)247 169
Nicuţ-Tănăsescu against Romania 169

Resolution CM/ResDH(2011)248 171
Ionescu and Mihaila against Romania 171

Resolution CM/ResDH(2011)249 173
Weissman and others against Romania 173

Resolution CM/ResDH(2011)250 175
Dragotoniu and Militaru-Pidhorni against Romania 175

Resolution CM/ResDH(2011)251 177
Spînu against Romania 177

Resolution CM/ResDH(2011)252 180
Dănilă against Romania 180

Resolution CM/ResDH(2011)253 183
Deak against Romania 183

Resolution CM/ResDH(2011)254 185
Iosif and others against Romania 185

Resolution CM/ResDH(2011)255 187
Hauler and Stancu against Romania 187

Resolution CM/ResDH(2011)256 189
Bujac against Romania 189

Resolution CM/ResDH(2011)257 191
Savu against Romania 191

Resolution CM/ResDH(2011)258 193
Bartos against Romania 193

Resolution CM/ResDH(2011)259 195
3 cases against Romania 195

Resolution CM/ResDH(2011)260 196
Marian Niţă against Romania 196

Resolution CM/ResDH(2011)261 198
Vanessa Tierce against San Marino 198

Resolution CM/ResDH(2011)262 201
11 cases against Serbia 201

Resolution CM/ResDH(2011)263 202
Bíro against the Slovak republic 202

Resolution CM/ResDH(2011)264 203
Lexa against the Slovak Republic 203

Resolution CM/ResDH(2011)265 206
Muñoz Diaz against Spain 206

Resolution CM/ResDH(2011)266 209
Iribarren Pinillos against Spain 209

Resolution CM/ResDH(2011)267 213
Diaz Ochoa against Spain 213

Resolution CM/ResDH(2011)268 216
Iselsten against Sweden 216

Resolution CM/ResDH(2011)269 218
Ziegler against Switzerland 218

Resolution CM/ResDH(2011)270 221
Scavuzzo-Hager and others against Switzerland 221

Resolution CM/ResDH(2011)271 224
2 cases against Turkey concerning the applicants’ continued detention during the hours
after following the release order
224

Resolution CM/ResDH(2011)272 226
Amato against Turkey 226

Resolution CM/ResDH(2011)273 228
Mörel against Turkey 228

Resolution CM/ResDH(2011)274 230
Gög, Kolsuzoğlu and Agbayır against Turkey 230

Resolution CM/ResDH(2011)275 232
Islamic Republic of Iran Shipping Lines against Turkey 232

Resolution CM/ResDH(2011)276 234
Menemen Minibüsçüler Odası against Turkey 234

Resolution CM/ResDH(2011)277 236
Mesutoğlu against Turkey 236

Resolution CM/ResDH(2011)278 238
Oral No. 2 against Turkey 238

Resolution CM/ResDH(2011)279 240
in three cases against Turkey concerning lack of compensation for the loss of title to property 240

Resolution CM/ResDH(2011)280 242
Karaman against Turkey 242

Resolution CM/ResDH(2011)281 244
Naif Demirci against Turkey 244

Resolution CM/ResDH(2011)282 246
Demir against Turkey 246

Resolution CM/ResDH(2011)283 247
9 cases against Ukraine 247

Resolution CM/ResDH(2011)284 248
Steel and Morris against the United Kingdom 248

Resolution CM/ResDH(2011)285 251
Brennan against the United Kingdom 251

Resolution CM/ResDH(2011)286 253
Price against the United Kingdom 253

Resolution CM/ResDH(2011)287 255
Boyle, Thompson and Bell against the United Kingdom 255

Resolution CM/ResDH(2011)288 258
O’Donoghue and others, Clift and Richard Anderson against the United Kingdom 258

Resolution CM/ResDH(2011)289 265
Edwards and Lewis against the United Kingdom 265

Resolution CM/ResDH(2011)290 268
in 7 cases against the United Kingdom 268

Interim Resolution CM/ResDH(2011)291 270
Sejdić and Finci against Bosnia and Herzegovina 270

Interim Resolution CM/ResDH(2011)292 272
in 154 cases against the Russian Federation concerning actions of the security forces
in the Chechen Republic of the Russian Federation
272

Interim Resolution CM/ResDH(2011)293 276
Burdov No. 2 against the Russian Federation 276

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1851

Execution of the judgment of the European Court of Human Rights
Paykar Yev Haghtanak against Armenia

(Application No. 21638/03, judgment of 20/12/2007, final on 02/06/2008)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the refusal by the Court of Cassation in 2003 to grant the applicant company's request for deferral of payment of court fees (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 the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)185

Information on the measures taken to comply with the judgment in the case of Paykar Yev Haghtanak against Armenia

Introductory case summary

The case concerns the violation of the applicant's right of access to a court in that the Court of Cassation refused in 2003 to grant the applicant company's request for deferral of payment of court fees, with the result that the company’s cassation appeal against an earlier court decision upholding the imposition of certain tax fines was not examined (violation of Article 6§1).

The European Court noted that the Court of Cassation had been prevented from making any assessment of the applicant company's ability to pay court fees by the express provisions of Article 70§3 of the Code of Civil Procedure which flatly prohibited exemption of commercial entities from payment of court fees. The Court considered that such a blanket prohibition raised of itself an issue under Article 6§1 of the Convention.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,200 EUR

25 EUR

1,225 EUR

Paid on 27/11/2008

b) Individual measures

The European Court awarded the applicant company just satisfaction in respect of non-pecuniary damage.

As regards pecuniary damage, the Court stated that it could not speculate as to what the outcome of the trial would have been if the Court of Cassation had examined the applicant company's cassation appeal. The Court recalled that the finding of a violation imposes on the respondent state a legal obligation to adopt individual measures. The Court noted in this connection that Article 241.1 of the Code of Civil Procedure allows the reopening of the domestic proceedings and that the most appropriate form of redress in cases where an applicant was denied access to court in breach of Article 6 § 1 of the Convention would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial.

Following the European Court's judgment, the applicant lodged an appeal for re-opening of the domestic proceedings before the Administrative Court which was accepted on 03/11/2008. Following a legislative amendment (Article 20 of the Law amending the Code of Civil Procedure of 26/12/2008 that entered into force on 1/1/2009), the Administrative Court transferred the case to the Court of Cassation on 13/02/2009 as it had become competent to examine the case. On 26/07/2009, the Court of Cassation decided to examine the applicant’s appeal. In its decision, the Court of Cassation referred extensively to the obligations of states to abide by final judgments of the European Court in accordance with Article 46 of the European Convention and to the conclusions of the European Court in the present judgment.

Eventually, after having examined the merits of the cassation appeal, the Court of Cassation rejected it and confirmed the Tax Inspectorate’s and the Commercial Court’s subsequent conclusions that the applicant company had failed to meet the requirements of the tax legislation.

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

II. General measures

On 07/04/2009, Article 70§3 of the Code of Civil Procedure, which excluded commercial entities from the right of deferral of payment of court fees (and which was thus at the basis of the present violation) was abolished (Amendment ՀՕ-85-Ն). Simultaneously, Article 22 §4 of the Law on State Fees was abolished, as it had the same wording as Article 70§3 of the Code of Civil Procedure (Amendment ՀՕ-84-Ն). The government considers that following these reforms, nothing will prevent the domestic courts from making their own assessment of companies' ability to pay court fees in the light of the requirements of the Convention as regards access to court.

In order to guide court practice the judgment was translated into Armenian and published on the websites of the Ministry of Justice (www.moj.am), of the Prosecutor's Office (www.genproc.am), of the Judicial authority of Armenia (www.court.am), of the Police of the Republic of Armenia (www.police.am) and of the Court of Cassation, on 2 September 2008.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1862

Execution of the judgment of the European Court of Human Rights
Ajtnik and others against Austria

(Applications No. 3914/09, 4250/09, 4251/09, 4252/09, 4253/09, 4254/09, decision of 31/05/2011)

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly settlement were executed by the respondent state,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close its examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1873

Execution of the judgments of the European Court of Human Rights
Schelling, Birnleitner, Bakker, Abrahamian, Brugger, Emmer-Reissig and
Hofbauer (No. 2) against Austria

(Application No. 55193/00, judgment of 10/11/2005, final on 10/02/2006,
Application No. 45203/99, judgment of 24/02/2005, final on 24/05/2005,
Application No. 43454/98, judgment of 10/03/2003, final on 10/07/2003,
Application No. 35354/04, judgment of 10/04/2008, final on 10/07/2008,
Application No. 76293/01, judgment of 26/01/2006, final on 26/04/2006,
Application No. 11032/04, judgment of 10/05/2007, final on 10/08/2007,
Application No. 7401/04, judgment of 10/05/2007, final on 10/08/2007)

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

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

Recalling that the violation of the Convention found by the Court in these cases concern the failure to hold an oral hearing before the Administrative Court (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 in order to comply with Austria’s 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;

Recalling that the Committee of Ministers’ decisions under Article 46, paragraph 2, of the Convention are entirely without prejudice to the Court’s consideration of other cases currently pending before it;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)187

Information about the measures to comply with the judgments in the cases of
Schelling, Birnleitner, Bakker, Abrahamian, Brugger, Emmer-Reissig and
Hofbauer (No. 2) against Austria

      Introductory case summary

These cases concern the failure to hold oral hearings before the Administrative Court, as first and only tribunal (violations of Article 6, paragraph 1) in:

- July 1999 in the Schelling case; the proceedings concerned the applications under the Water Act and the Landscape Protection Act for a permission to install a culvert on the applicant's land.

- January 1998 in the Birnleitner case; the proceedings concerned the allocation of plots of land to the applicant's hunting ground.

- in January 1998 in the Bakker case; the proceedings concerned the applicant's request to exercise his profession as a self-employed physiotherapist.

- in February 2004 in the Abrahamian case; the proceedings concerned the applicant's contributions to the pension and invalidity fund of the Vienna Medical Association.

- in March 2001 in the Brugger case; the proceedings concerned an application under the Carinthian Environmental Protection Act for permission to build a tool-shed on the applicant's land.

- in September 2003 in the Emmer-Reissig case; the proceedings concerned the dispute over whether the applicant's plot of land could be used as agricultural estate.

- in November 2003 in the Hofbauer (No. 2)case; the proceedings concerned a dispute as to whether the competent authorities should have issued a removal order of the neighbour's fence (allegedly constructed without permission) and, in that context, had to decide questions of fact, namely, whether the remaining posts constituted a danger for the applicant's land.

      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

Schelling (55193/00)

-

-

3 500 EUR

3 500 EUR

Paid on 04/05/2006

Birnleitner (45203/99)

-

-

3 000 EUR

3 000 EUR

Paid on 08/06/2005

Bakker (43454/98)

-

-

4 500 EUR

4 500 EUR

Paid on 15/09/2003

Abrahamian (35354/04)

-

-

3 000 EUR

3 000 EUR

Paid on 02/10/2008

Brugger (76293/01)

-

-

2 842,74 EUR

2 842,74 EUR

Paid on 22/05/2006

Emmer-Reissig (11032/04)

-

-

-

-

 

Hofbauer No. 2 (43454/98)

-

-

1 331,90 EUR

1 331,90 EUR

Paid on 02/11/2007

b) Individual measures

Article 45 § 1 (4) of the Administrative Court Act 1985 provides the possibility of re-opening of the proceedings upon request by one of the parties when the provision concerning the right to be heard was not complied with and it is to be assumed that the judgment would have been different.

Schelling case: The applicant requested the re-opening of the above-mentioned proceedings. The Administrative Court held that the re-opening was subject to two conditions, namely, a violation of a party's right to be heard in the previous proceedings, and the possibility that there would have been a different outcome of the case if the party had been duly heard. In the present case, the applicant had not specified which arguments he had been prevented from submitting and to what extent these arguments might have lead to a different outcome of the case if there had been a hearing. On 21 February 2006, the Administrative Court refused to re-open the proceedings. The applicant lodged a new application with the European Court (no. 46128/07). He complained about the refusal to re-open the proceedings and invoked a violation of Article 6, paragraph 1, of the Convention. On 16 September 2010, the Court rejected his second application as being incompatible ratione materiae with the provisions of the Convention.

Hofbauer (No. 2) case: On 21 September 2007, the Administrative Court rejected the applicant’s request for re-opening as submitted outside the statutory time-limit.

In the cases of Birnleitner, Bakker, Abrahamian, Brugger and Emmer-Reissig: No information concerning eventual requests for re-opening was provided.

      II. General measures

Legislative measures: These cases present similarities to those of Stallinger and Kuso and of Linsbod against Austria, the examination of which was closed by Resolution DH(97)405 and Resolution DH(98)59, after the adoption of general measures. Following the legislative reform which entered into force on 01/09/1997, Article 39 § 2 (6) of Amended Administrative Court Act No. 88 of 13/08/1997 provides that the Administrative Court may decide not to hold a hearing where it is apparent “from the pleadings of the parties to the proceedings before it and from the files relating to earlier administrative proceedings that an oral hearing is not likely to clarify the case further and when this will not be contrary to Article 6 of the European Convention on Human Rights”. As a result of the measures taken by Austria, the Administrative Court now conducts hearings in those cases where a decision falls within the scope of Article 6 of the Convention and the hearing was requested by the applicant. It does so unless such a public hearing was already conducted by a subordinate authority to be qualified as a tribunal within the meaning of Article 6 of the Convention. This has resulted in a considerable increase in number of hearings held in the last two years.

Financial measures: The Austrian authorities indicated that the Administrative Court is to pay any just satisfaction awarded to the applicants by the Court from its own budget, a measure which should contribute towards preventing new, similar violations (see the case of Alge against Austria, Resolution DH(2007)110).

Awareness-raising measures, publication and dissemination: All judgments of the Court against Austria concerning a violation at the level of the Administrative Court are automatically transmitted to the Presidency of that Court. The Court’s judgments are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). A summary of the ECHR judgments and decisions concerning Austria is regularly prepared by the Federal Chancellery and disseminated widely to the Austrian authorities, including the Parliament and the courts. Judgments of the Court against Austria are usually published in a summary version in German language via www.menschenrechte.ac.at together with a link to the Court’s judgments in English. Moreover, the Austrian authorities stated that the judges of the Austrian Administrative Court are kept constantly informed about the case-law of the Court to ensure that Article 39 of the Administrative Court Act, mentioned above, is applied in full conformity with the Convention.

A summary of the judgment in German in the case of Schelling was published by the Austrian Institute for Human Rights, in the newsletter Menschenrechte 2005, p. 277 (http://www.menschenrechte.ac.at/docs/05_6/05_6_04), in the case of Bakker in the newsletter Menschenrechte 2003, p. 88 (http://www.menschenrechte.ac.at/docs/03_2/03_2_07), in the case of Abrahamian in the newsletter Menschenrechte 2008, p. 94-95 (http://www.menschenrechte.ac.at/docs/08_2/08_2_10), in the case of Brugger in the newsletter Menschenrechte 2006, p. 24 (http://www.menschenrechte.ac.at/docs/06_1/06_1_10). The cases of Abrahamian, Emmer-Reissig, Hofbauer No. 2 were also disseminated via Circular Note of 04/08/2009 of the Federal Chancellery. The Federal Chancellery also addressed a summary translation of the judgment in the Abrahamian case to the Administrative Court, Austrian Medical Chamber and the Austrian Ministry for Health, Family and Youth.

Administrative reform: Further administrative reform efforts continue to be discussed at the national level. The respondent state informed the Committee of the work of the 9th Committee of the Österreich-Konvent project, which examined the possibility of adopting organisational measures to deal with the case-load problem of the Administrative Court. In particular, the Konvent looked into the possibility of introducing a first-instance administrative jurisdiction at the federal and regional levels. The Konvent published its report on 31 January 2005, available under www.konvent.gv.at. It contains numerous concrete reform proposals. A special sub-committee of the Austrian Parliament discussed these proposals, meant to serve as a basis for a major administrative-law reform.

The issue of failure to hold oral hearings before the Administrative Court after adopting the general measures described above is highlighted in more recent judgments of the Court. Additional measures taken or envisaged by the Austrian authorities, especially concerning the ongoing administrative reform, are being supervised by the Committee of Ministers in the context of the Koottummel group (Application No. 49616/06, judgment of 10/12/2009).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1884

Execution of the judgments of the European Court of Human Rights
Achleitner, Brunnthaler, Prischl, Bösch, Geyer and Müller against Austria

(Application No. 53911/00, judgment of 23/10/2003, final on 23/01/2004,
Application No. 45289/99, judgment of 29/06/2006, final on 29/09/2006,
Application No. 2881/04, judgment of 26/04/2007, final on 26/07/2007,
Application No. 17912/05, judgment of 03/05/2007, final on 03/08/2007,
Application No. 69162/01, judgment of 07/07/2005, final on 07/10/2005,
Application No. 12555/03, judgment of 05/10/2006, final on 05/01/2007)

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

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

Recalling that the violation of the Convention found by the Court in these cases concerns the excessive length of civil and criminal proceedings before administrative authorities and courts and, in the case of Bösch, also the lack of holding an oral hearing before the Administrative Court (see details in Appendix) (violation of Article 6 § 1);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Austria’s 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 the Committee of Ministers’ decisions under Article 46, paragraph 2, of the Convention are entirely without prejudice to the Court’s consideration of other cases currently pending before it;

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

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

      - general measures preventing, similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)188

Information about the measures to comply with the judgments in the cases of
Achleitner, Brunnthaler, Prischl, Bösch, Geyer and Müller against Austria

      Introductory case summary

In the present cases, the Court found a violation of Article 6, paragraph 1 of the Convention.

The following four cases concern the excessive length of proceedings on civil rights and obligations before the administrative authorities and courts:

Achleitner: The period taken into consideration by the Court began in 1976 and the proceedings were still pending at the time of the Court's judgment (almost twenty-seven years in a dispute over a river bed and the effects of regulation works on a well onto a fishing farm).
Brunnthaler: The period taken into consideration by the Court began in 1992 and ended in 1998 (six years and two months concerning a request for an industrial licence for chimney sweeping).
Prischl: The period taken into consideration by the Court began in 1995 and ended in 2003 (almost eight years, concerning land consolidation).
Bösch: The period taken into consideration by the Court began in 2000 and ended in 2004 (four years and nearly two months concerning a request for an exemption permit to build a tool shed on a farm). This case also concerns a violation of Article 6, paragraph 1 of the Convention on account of the lack of holding a public oral hearing before the Administrative Court in October 2004.

The following two cases concern the excessive length of criminal proceedings before the administrative authorities and courts:

Geyer: The period taken into consideration by the Court began in 1994 and ended in 2000 (six years and five months, on the basis of the Tax Offences Act).
Müller: The period taken into consideration by the Court began in 1994 and ended in 2002 (eight years and two months, on the basis of the Employment of Aliens Act).

        I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Achleitner (53911/00)

-

35 000 EUR

5 000 EUR

40 00 EUR

Paid on 19/01/2004

Brunnthaler (45289/99)

-

2 500 EUR

5 686,88 EUR

8 186,90 EUR

Paid on 21/11/2006

Prischl (288/04)

-

5 500 EUR

500 EUR

6 000EUR

Paid on 18/10/2007

Bösch (17912/05)

-

2 500 EUR

2 000 EUR

4 500 EUR

Paid on 25/10/2007

Geyer (69192/01)

-

4 500 EUR

2 000 EUR

6 500 EUR

Paid on 29/12/2005

Müller (12555/03)

-

4 000 EUR

2 001,96 EUR

6 001,96 EUR

Paid on 03/04/2007

b) Individual measures

Excessive length of proceedings:
Achleitner: The authorities have acted to advance the proceedings as far as possible. In July 2006 the Administrative Court set aside the 1982 decision of the first-instance administrative authority (Bezirkshauptmannschaft) and referred the case back. On 25 October 2006 the Government Agent sent a letter to the Federal Ministry of Agriculture, Forestry, Environment and Water Supply, which is responsible for the Bezirkshauptmannschaft, firmly recalling the Court's judgment and asking the Ministry to use all possible means to ensure that the case is closed respecting the requirements of the European Convention on Human Rights. An attempt at resolving the dispute by way of mediation failed at the last stage from the applicant’s side. As a consequence, the case needed to be taken up by the courts again. On 29 June 2009 the Bezirkshaupmannschaft granted a new permission for the regulation work carried out by the Municipalities of Schalchen and Mattighofen. The applicants also appealed against this decision and requested further examination. The result of an expert study by the Technical University of Vienna was due on 30 November 2011. Depending on the further comments of the parties of the appellate proceedings the proceedings in this case could be concluded.

The proceedings in the remaining cases were concluded.

Lack of holding an oral hearing before the Administrative Court in the case of Bösch:
No information was received as regards a possible request for re-opening of the proceedings.

        II. General measures

Excessive length of proceedings:
Legislative measures: As far as the excessive length of proceedings before the administrative authorities and courts is concerned, the cases present similarities to that of G.S., of Morcher and of Alge and Others (see Resolutions ResDH(2004)77, ResDH(2007)112 and ResDH(2007)110 for the measures adopted).

It should be noted that in 2004, the Administrative Court once again managed to reduce the number of cases pending for more than three years. The average time needed for reaching a decision on the merits before this Court in 2003 and 2004 was about 22 months, in 2005 about 21 months, in 2006 about 20 months, in 2007 about 19 months, in 2008 about 20 months and in 2009 about 19 months (see Activity Report 2005 - 2009 of the Administrative Court, available via www.vwgh.gv.at).

Awareness-raising measures, publication and dissemination: All judgments of the Court against Austria concerning violations by the Administrative Court are automatically transmitted to the Presidency of that Court. Furthermore, judgments of the Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). Judgments of the Court concerning Austria are also usually published in a summary version via www.menschenrechte.ac.at together with a link to the Court's judgments in English. Additionally, the case of Brunnthaler was disseminated via the usual Circular Note of the Federal Chancellery of 11/11/2006 and the case of Bösch via Circular Note of 04/08/2009.

Administrative reform: In addition, the authorities informed the Committee of the work of the 9th Committee of the Österreich-Konvent project, which examined the possibility of adopting organisational measures to deal with the case-load problem of the Administrative Court. In particular, the Konvent looked into the possibility of introducing a first-instance administrative jurisdiction at the federal and regional levels. The Konvent published its report on 31 January 2005, available under www.konvent.gv.at. It contains numerous concrete reform proposals. A special sub-committee of the Austrian Parliament discussed these proposals, meant to serve as a basis for a major administrative law reform.

The Austrian authorities further indicated that the number of complaints lodged with the Administrative Court has continued to raise. Until the introduction of the Asylum Court in 2008, the Administrative Court was the only judicial instance that could be addressed in administrative matters. The Administrative Court can refuse to deal with complaints to a limited extent, i.e. concerning decisions by the Independent Administrative Panels or Federal Public Contracting Office. In many other fields, the Administrative Court is still the first and only tribunal in the Convention sense entitled to review lawfulness in a comprehensive manner. In all these cases, the Administrative Court must decide on the merits and, in case of a request to that effect, conduct a public oral hearing, which takes some time. The decisions to be adopted shall not only be quick but also of high quality. The Administrative Court has repeatedly drawn attention to its work overload and to the necessity of a structural reform. In its Activity Report of 2002, it stated that there has been a considerable, “notorious and structural” excessive workload. The need for a reform of the administrative jurisdiction is generally recognised.

The establishment of the Asylum Court has somewhat alleviated the burden on the Administrative Court. The number of judges was raised by five members. Since there were no asylum complaints lodged with the Administrative Court, the number of new complaints before that court was reduced in 2009. The relatively high backlog reduction in 2009 primarily concerns old asylum cases, the majority of which could be determined without the formulation of a complete ruling, by way of a rejection. The still remaining asylum cases shall be closed in the course of 2011.The backlog in other areas cannot be reduced so rapidly.

The authorities, even though recognising the problems of regrettable duration of individual proceedings and overburdening of the Administrative Court, added that the number of violations by Austria due to an excessive length was not very high from the overall perspective and that the majority of cases brought before the Administrative Court were still determined within a relatively short time.

In order to resolve the problems in the administrative jurisdiction, a draft has been sent to the pertinent bodies for consultations (available on the homepage of the Austrian Parliament under http://www.parlament.gv.at/PG/DE/XXIV/ME/ME_00129/pmh.shtml). Intensive efforts have been made in Austria during more than 20 years to introduce a two-tier administrative judiciary. The draft is based on the above-mentioned work of the Österreich-Konvent and the Special Committee established by the National Council. The aim is an advancement of the legal protection system for accelerating proceedings, providing a better service to citizens and relieving the burden of the Administrative Court. First-instance administrative courts determine cases on the merits and an appeal against their decisions lies to the Administrative Court, which should be invested with far-reaching powers of rejection. The consultation period finished in 2010 and the government intends to submit a draft before the end of 2011.

Failure to hold an oral hearing before the Administrative Court in the case of Bösch:
This issue was examined under the cases of Stallinger and Kuso and of Linsbod against Austria, the examination of which was closed by Resolution DH(97)405 and Resolution DH(98)59, after the adoption of general measures. Further measures were taken in the context of the case of Schelling and others (Application No. 55193/00, judgment of 10/11/2005).

Further administrative reform efforts continue to be discussed at the national level. Issues concerning excessive length of administrative proceedings and the existence of effective remedies as well as the issue of the failure to hold oral hearings before the Administrative Court, having undertaken the general measures described above, are highlighted in more recent judgments of the Court. Additional measures taken or envisaged by the Austrian authorities, especially concerning the ongoing administrative reform, are being supervised by the Committee of Ministers in the context of the Rambauske group (Application No. 45369/07, judgment of 28/01/2010) regarding excessive length of administrative proceedings, and in the context of the Koottummel group (Application No. 49616/06, judgment of 10/12/2009) regarding the failure to hold oral hearings before the Administrative Court.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1895

Execution of the judgments of the European Court of Human Rights
in 21 cases against Belgium concerning the excessive length of certain civil proceedings, in particular before the Brussels Court of Appeal

(list in Appendix)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the excessive length of certain civil proceedings, in particular before the Brussels Court of Appeal (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;

Recalling that on 23 February 2005, in view of the measures presented by the Belgian authorities (see Appendix to this resolution), the Committee of Ministers decided to put an end to its supervision of the execution of these cases;

Adding however that in the meantime another group of cases concerning the excessive length of proceedings was constituted (Dumont group of cases) and that the Committee continues supervising the execution of that group;

      DECLARES, in view of its decision of 23 February 2005 mentioned above, that it has exercised its functions under Article 46, paragraph 2, of the Convention in the present cases and consequently

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)189

Information on the measures taken to comply with 21 judgments against Belgium concerning the excessive length of certain civil proceedings, in particular before the Brussels Court of Appeal

      Introductory case summary

These cases concern the excessive length of certain civil proceedings, in particular before the Brussels Court of Appeal (violations of Article 6§1). The proceedings at issue began between 1981 and 1998.

The European Court recalled its constant case-law according to which the chronic overload of a court does not provide a valid justification for the length of proceedings, and that Article 6§1 obliges states parties to the Convention to organise their judiciary so that the courts can comply with each of its requirements, including the requirement to have a case heard within a reasonable time (judgment in Oval against Belgium, §17).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

    Costs and expenses

Total

Oval (49794/99) judgment of 15/11/02, final on 15/02/03

-

7436,81 EUR

2974,72 EUR

10 411,53 EUR

                      Paid on 17/06/2003 + interest

Oren and Shoshan (49332/99) judgment of 15/11/02, final on 15/02/03

-

-

-

-

                      -

Sitram (49495/99) judgment of 15/11/02, final on 15/02/03

-

2478,94 EUR

2478,94 EUR

4957,88 EUR

                      Paid on 24/06/2003 + interest

Nelissenne (49518/99) judgment of 23/10/03, final on 23/01/04

-

5000 EUR

-

5000

                      Paid on 07.01.2004

Dooms and others (49522/99) judgment of 15/11/02, final on 15/02/03

-

11500 EUR

277,76 EUR

11 777,76 EUR

                      Paid on 20/06/2003 + interest

Lefebvre (49546/99) judgment of 15/11/02, final on 15/02/03

-

8000 EUR

3050,45 EUR

11 050,45 EUR

                      Paid on 19.06.2003 + interest

De Plaen (49797/99) judgment of 15/11/02, final on 15/02/03

-

7436,81 EUR

1859,20 EUR

9296,01 EUR

                      Paid on 17.06.2003 + interest

Randaxhe (50172/99) judgment of 15/11/02, final on 15/02/03

-

-

-

-

                      -

Kenes (50566/99) judgment of 15/11/02, final on 15/02/03

-

-

-

-

                      -

Boca (50615/99) judgment of 15/12/02, final on 15/02/03

-

-

-

-

                      -

Gökce and others (50624/99) judgment of 30/01/03, final on 30/04/03

2500 EUR

5000 EUR

2500 EUR

10 000 EUR

                      Payment within time limit confirmed by lawyer

Olbregts (50853/99) judgment of 04/12/03, final on 04/03/04

-

-

1808,38 EUR

1808,38 EUR

                      Paid on 13.03.2004

Dautel (50855/99) judgment of 30/01/2003, final on 30/04/2003

-

8000 EUR

2000 EUR

10 000 EUR

                      Paid on 30.06.2003

Name and application number

Pecuniary damage

Non-pecuniary damage

    Costs and expenses

Total

Lenaerts (50857/99) judgment of 11/03/2004, final on 11/06/2004

-

-

3740 EUR

3740 EUR

                      Payment within time limit confirmed by lawyer

Willekens (50859/99) judgment of 24/04/03, final on 24/07/03

-

-

-

-

                      -

Bouzalmad (51083/99) judgment of 11/03/2004, final on 11/06/2004

-

6500 EUR

-

6500 EUR

                      Payment within time limit confirmed by lawyer

Gillet (52229/99) judgment of 24/04/03, final on 24/04/03

-

12 000 EUR

2000 EUR

14 000 EUR

                      Paid on 11.07.2003

Rouard (52230/99) judgment of 29/07/04, final on 29/10/04

-

-

-

-

                      -

Roobaert (52231/99) judgment of 29/07/04, final on 29/10/04

-

-

-

-

                      -

GB-Unic (No. 1) (52303/99) judgment of 29/07/04, final on 29/10/04

-

-

5000 EUR

5000 EUR

                      Paid on 22.10.2004

GB-Unic (No. 2) (52304/99) judgment of 29/07/04, final on 29/10/04

-

 

5000 EUR

5000 EUR

                      Paid on 22.10.2004

b) Individual measures

The authorities confirmed in a letter dated 15/12/2004 that all the cases have been closed by final judgments rendered by supplementary chambers of the Court of Appeal (see below). Consequently, no other individual measure was considered necessary.

      II. General measures

Several measures have been taken: inter alia, a law of 09/07/1997 “containing measures to reduce the judicial backlog in Courts of Appeal” instituted a system of supplementary chambers and additional judges. The authorities also indicated that other measures were being adopted or implemented to reduce the backlog in Belgium (procedural measures, in particular to give judges a more active role in proceedings; an increase in the number of legal officers (référendaires and juristes de parquet); draft law on arbitration; improvement of Courts' organisation and management, etc.). Most of these measures came within the scope of a general plan (Plan Thémis) drawn up by the Belgian Minister of Justice.

Furthermore, measures have also been adopted concerning the Brussels Court of Appeal in particular. To enforce the law of 1997 mentioned above, supplementary chambers have been created to deal with the backlog, which had at that time the effect of reducing the maximum waiting period in the ordinary chambers of the Brussels Court of Appeal to one year. Moreover, a “Brussels judicial backlog Commission” was created on the initiative of the Ministry of Justice. A law was passed on 16/07/2002 increasing the number of additional judges at the Brussels Court of Appeal from 25 to 50; a body of provisional advisors to absorb the backlog before courts of appeal was set up under the law of 29/11/2001. Finally, a “an agreement of mutual commitment counteract the judicial backlog” (protocole d'engagement réciproque pour lutter contre l'arriéré judiciaire) was negotiated between the Ministry of Justice and the executives (chefs de corps) of the Brussels Courts. In substance, it is a matter of granting human and material resources to the courts in return for increased efforts to reduce the backlog. The Belgian authorities added in a letter dated 15/12/2004 that of all the cases attributed to supplementary chambers, only six were still pending, and that for at least four of them a final judgment would be rendered by the end of 2004.

Finally these judgments, like all European Court's judgments delivered concerning Belgium, have been published in the three official languages on the Internet site of the Ministry of Justice.

      III. Conclusions of the respondent state

The government considers that no other individual measure is required to remedy the consequences for the applicants of the violation of the Convention found by the European Court in these cases. It further recalls that the general measures continue to be examined by the Committee of Ministers in the framework of the Dumont group of cases against Belgium. Thus, it considers that Belgium has complied with its obligations under Article 46, paragraph 1, of the Convention in these cases.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1906

Execution of the judgments of the European Court of Human Rights
Stratégies et Communications and Dumoulin against Belgium and
Garsoux and Massenet against Belgium

(Application No. 37370/97, judgment of 15 July 2002, final on 15 October 2002, and
Application No. 27072/05, judgment of 13 May 2008, final on 13 August 2008)

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

Having regard to the 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 criminal proceedings at the investigation phase, in cases in which the applicants were respectively accused or civil parties (violations of Article 6, paragraph 1); recalling that the case of Stratégies et Communications and Dumoulin also concerns the lack of an effective remedy in this respect (violation of Article 13) (see details in Appendix);

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

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

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment of Stratégies et Communications and Dumoulin (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;

Recalling that on 20 June 2007, in view of the measures presented by the Belgian authorities (see Appendix to this resolution), the Committee of Ministers decided to put an end to its supervision of the execution of the case of Stratégies et Communications and Dumoulin, and recalling that it took the same decision for the repetitive case of Garsoux and Massenet;

Adding however that in the meantime another group of cases concerning the excessive length of criminal proceedings at the investigation phase was constituted (De Clerck group of cases) and that the Committee continues supervising the execution of that group, concerning both Article 6§1 and Article 13;

      DECLARES, in view of its decision of 20 June 2007 mentioned above, that it has exercised its functions under Article 46, paragraph 2, of the Convention in the present cases and consequently

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)190

Information on the measures taken to comply with the judgments in the cases of
Stratégies et Communications and Dumoulin against Belgium and
Garsoux and Massenet against Belgium

      Introductory case summary

These cases concern the excessive length of certain criminal proceedings at the investigation phase, in cases in which the applicants were respectively accused or civil parties. In the case of Stratégies et Communications and Dumoulin, the investigation began on 24/04/1996 and was still under way, six years and two months later, when the European Court delivered its judgment (violation of Article 6§1). In the case of Garsoux and Massenet, the investigation began – in respect of the only applicant regarding whom the Court found a violation – on 5 April 2001 and ended on 24 April 2007, after more than 6 years for one level of jurisdiction (violation of Article 6§1). The case of Stratégies et Communications and Dumoulin also concerns the lack of an effective remedy in this respect (violation of Article 13).

      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

Stratégies et Communication and Dumoulin (37370/97) judgment of 15/07/02, final on 15/10/02

-

5000 EUR

9000 EUR

14 000 EUR

Paid on 02/12/2002

Garsoux and Massenet (27072/05) judgment of 13/05/08, final on 13/08/08

-

-

-

-

b) Individual measures

In the case of Stratégies et Communications and Dumoulin, the applicants’ file was closed and archived following a decision of the Attorney General of Brussels, mainly based on the absence of any party claiming damages and the few criminal elements in this case. In the case of Garsoux and Massenet, it is recalled that the proceedings at issue were finished when the Court delivered its judgment. In these circumstances, and in view of the Court’s findings concerning just satisfaction, no other individual measure appears necessary.

      II. General measures

Regarding the violations of Article 6§1, in November 2005 the General Public Prosecutor sent a circular to all prosecutors concerning new guidelines on the supervision of the efficiency of long preliminary investigations. This document inter alia encourages public prosecutors regularly to send detailed reports on cases in which preliminary investigations have lasted for more than one year to the General Public Prosecutor.

The examination of the violation of Article 13 continues in the framework of the De Clerck group of cases.

      III. Conclusions of the respondent state

The government considers that no other individual measure is required to remedy the consequences for the applicants of the violation of the Convention found by the European Court in these cases. It further recalls that the general measures concerning Articles 6§1 and 13 continue to be examined by the Committee of Ministers in the framework of the De Clerck group of cases. Thus, it considers that Belgium has complied with its obligations under Article 46, paragraph 1, of the Convention in these cases.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1917

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

(Application No. 51564/99, judgment of 5 February 2002, final on 5 May 2002)

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

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

Recalling that the violations of the Convention found by the Court in this case concern the right to freedom of the applicants, Slovakian nationals of Roma origin and asylum seekers, due to the means employed to secure their arrest in 1999 and the inaccessibility of the remedy available for contesting their deprivation of liberty (violation of Article 5, paragraphs 1 and 4), the prohibition of collective expulsions owing to the absence of adequate guarantees to ensure proper consideration of each applicant’s individual situation (violation of Article 4, Protocol No. 4) and the absence of a remedy, fulfilling the requirements of Article 13, whereby they might air their complaints under Article 4 of Protocol No. 4 (violation of Article 13 of the Convention in conjunction with Article 4 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 judgment;

Recalling Interim Resolution ResDH(2006)25, adopted on 5 April 2006 in this case;

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

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

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded 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;

Stressing that on 20 June 2007, on the basis of the measures reported by the Belgian authorities (see details in Appendix), the Committee of Ministers decided to end its supervision of execution in this case;

Nevertheless recalling, with regard to the general measures under Article 13, that the Court has meanwhile concluded in its Grand Chamber judgment in the case of M.S.S. against Belgium and Greece (Application No. 30696/09, final judgment on 21/01/2011) that Belgium lacks an effective remedy for contesting the decision to remove a foreigner, and that the Committee is keeping this question under review in connection with the execution of the judgment in this case;

      DECLARES, considering its aforementioned decision of 20 June 2007, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)191

Information on the measures to comply with the judgment in the case of
Čonka against Belgium

      Introductory case summary

The case concerns the circumstances surrounding the expulsion from Belgium of the applicants, Slovakian nationals of Roma origin and asylum seekers.

Summoned to the police station on 1 October 1999 on the pretext of completing their applications for asylum, the applicants were in fact placed under arrest, taken to a closed transit centre then deported to Slovakia on 5 October 1999. The Court found it incompatible with Article 5 of the Convention that, in the context of a planned expulsion operation and for the sake of facility or effectiveness, the administration should consciously decide to mislead even persons in an unlawful situation about the purpose of a summons so as to deprive them more easily of their liberty (paragraph 42 of the judgment) (violation of Article 5, paragraph 1).

Furthermore, a number of factors prevented the applicants from effectively putting their case to the committals division, the only judicial authority competent to determine the lawfulness of their detention (violation of Article 5, paragraph 4). In particular, the information on the remedies available was set out in small type and in a language not understood by the applicants, in the document handed to them on arrival at the police station. Besides, only one interpreter was present in the police station for some tens of families and there was none at the closed centre, which made any contact with a lawyer difficult; no other form of legal assistance was provided by the authorities, whether at the police station or at the transit centre; finally, a decisive factor, the applicants’ lawyer was informed at such a time that any application to the committals division was rendered pointless (paragraphs 44 and 45 of the judgment).

The fact that the applicants were expelled at the same time as some 70 other asylum seekers, without proper consideration of the individual situation of each of them at any stage from the summoning of the persons concerned to the police station until their expulsion, gave rise to a violation of Article 4 of Protocol No. 4 (paragraph 63 of the judgment).

The applicants lodged a petition to set aside, with an application under ordinary procedure for stay of execution, against the decision to refuse them permission to stay. The Court observed that this appeal was among those available to the applicants against the decision, according to the document containing it. Given that, according to the decision, those concerned had only 5 days to leave the national territory, that the application under ordinary procedure for stay of execution was not in itself suspensive, and that the Conseil d’Etat had 45 days to rule on such an application, the mere mention of it among the available remedies was, to say the least, liable to cause confusion for the applicants (paragraph 80). As to the application for stay of execution under extremely urgent procedure, the Court observed in particular that the applicants had no guarantee that the Conseil d’Etat would rule, or even be in session, before their expulsion, or that the administration would observe a reasonable minimum period of grace, and all these factors made the handling of the application too uncertain to enable the requirements of Article 13 to be satisfied (paragraph 83) (violation of Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs & expenses

Total

-

EUR 10,000

EUR 9,000

EUR 19,000

Paid on 27/08/2002 + interest

b) Individual measures

The applicants were expelled on 5 October 1999. Their appeal against the decision leading to their expulsion was struck out of the list of the Conseil d'Etat for failure on the applicants’ part to pay the corresponding fees (after refusal of their request for legal aid). In its judgment, the Court awarded them just satisfaction in respect of non-pecuniary damage. At no time did the applicants make any other request before the Committee of Ministers. In these circumstances, no other individual measure was considered necessary.

      II. General measures

Violation of Article 5 paragraph 1 and Article 4 of Protocol No. 4 (circumstances of the placement in detention and of the expulsion)

The Court’s judgment was published on the website of the Ministry of Justice and received extensive press coverage. The Belgian authorities consider that having regard to the direct effect given to the judgments of the European Court in Belgium, this suffices to avert any similar violations.

Violation of Article 5 paragraph 4 (access to remedies against the measure of detention)

The Royal Decree of 2 August 2002 provides that upon arrival in a detention centre situated on Belgian territory run by the Aliens Office, each inmate is to receive an information booklet explaining inter alia the possibilities for appeal against detention, for lodging a complaint about the circumstances of detention, and for requesting legal aid. The Centre’s Director is to tell inmates the reasons for their detention, the statutory and regulative provisions applying to them, and the possible remedies against that decision. He is also to ensure that inmates are able to request the legal aid provided by law (Article 62). Inmates are entitled to make daily telephone calls free of charge to their lawyer between 8 am and 10 pm, and lawyers may make contact by telephone with their client at any time; telephone contact between an inmate and his/her lawyer cannot be prohibited (Article 63). According to the Belgian authorities, inmates of the centre can also send documents to their lawyer by fax, if they make an explicit request to do so. Finally, the lawyers and interpreters assisting them have daily access to the centre at least from 8 am to 10 pm, if they have a client there, provided that they can certify their status with a valid professional card. The lawyer’s visit cannot be forbidden (Article 64).

The Royal Decree of 8 June 2009 establishes the guarantees applicable to the closed centres located at the border.

Violation of Article 13 in conjunction with Article 4 of Protocol No. 4 (access to remedies against an expulsion measure)

First, on 19 July 2002 the Minister of the Interior adopted a circular notified to the Director General of the Aliens Office to the effect that “in the event of a request being lodged with the Conseil d’Etat for a stay of execution under extremely urgent procedure of an order to leave the territory issued in respect of an unsuccessful asylum seeker, the order shall not be executed until such time as the Conseil d’Etat has ruled on this request for a stay of execution under extremely urgent procedure”.

Next, the law of 15 September 2006, which came into force on 1 June 2007, carried out a sweeping reorganisation of proceedings relating to aliens. It reformed the Conseil d’Etat, which no longer operates except as an administrative review body on points of law, and set up a new administrative court, the Conseil du Contentieux des Etrangers (Aliens' Disputes Board, hereinafter referred to as the CCE).

The CCE’s powers vary depending on whether it has before it an appeal against a decision by the office of the Commissioner-General for Refugees and Stateless Persons (hereinafter referred to as the CGRA) or other individual decisions.

Appeals against decisions of the CGRA on asylum and subsidiary protection now have the effect ipso jure of staying execution (Article 39/70 of the law of 15 December 1980 on aliens’ entry to the territory, residence, domiciliation and removal, as amended by the law of 2006 mentioned above). The CCE acts a court with jurisdiction over all aspects of litigation: it may withdraw and grant refugee status or the benefit of subsidiary protection, confirm the decision to refuse it, or set aside the decision with referral to the CGRA (Article 39/2, paragraph 1, of the law).

As to other proceedings concerning aliens (in respect of entry, residence, domiciliation and removal), the CCE makes rulings to set aside and, where appropriate, to stay execution. An application to set aside does not automatically stay execution but may be accompanied by a request for stay of execution under “extremely urgent procedure” which suspends the execution of the expulsion measure until the Council adjudicates, i.e. for 72 hours maximum. However, in the judgment in the case of M.S.S. against Belgium and Greece (21 October 2011), the Court concluded that Belgium had no effective remedy to challenging the decision to expel an alien seeking asylum.

In particular, it held that the application for stay of execution that could be lodged “under extremely urgent procedure” with the Aliens Appeals Board did not meet the criteria established in its case-law (paragraph 390 of the M.S.S. against Belgium and Greece judgment). The Committee of Ministers is keeping this question under review in connection with the execution of this judgment.

      III. Conclusions of the respondent state

The government considers that no individual measure is required in this particular case apart from the payment of just satisfaction, that subject to the aspects relating to Article 13 whose examination is proceeding in connection with the case of M.S.S. against Belgium and Greece, the general measures will prevent similar violations and that Belgium has thus complied with its obligations under Article 46, paragraph 1, of the Convention in this case.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1928

Execution of the judgment of the European Court of Human Rights
Kalkanov against Bulgaria

(Application No. 19612/02, judgment of 9 October 2008, final on 9 January 2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the unfairness of certain civil proceedings due to the refusal by the Supreme Court of Cassation to examine a decisive argument raised by the applicant (violation of Article 6, paragraph 1) (see details in Appendix);

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

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

Having noted that in the judgment the Court did not make any award for just satisfaction;

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 relevant circumstances (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)192

Information about the measures to comply with the judgment in the case of
Kalkanov against Bulgaria

      Introductory case summary

The case concerns civil proceedings brought in 1999 by the applicant in order to have his dismissal revoked. Deciding on the applicant's appeal on points of law, the Supreme Court of Cassation refused to examine a decisive argument he raised, finding that he was barred from doing so as the argument in question was new and required new evidence to be gathered, which was not possible at this stage of the proceedings.
The European Court noted that this conclusion of the Supreme Court of Cassation was clearly erroneous as it was disproved by the facts of the case. The applicant had raised the argument as early as in his initial statement of claim and the argument had in effect been examined by the lower courts (violation of Article 6, paragraph 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The applicant did not submit a claim for just satisfaction

b) Individual measures

Following the judgment of the European Court, the applicant did not apply for re-opening of the domestic proceedings criticised by the judgment although he had the possibility to do so, in accordance with Article 303, §1, subparagraph 7 of the Code of Civil Procedure.

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

      II. General measures

The government considered that the violation found in this case constituted an isolated incident and was not due to defects in the legislation or the judicial practice. Therefore, the government considered that no specific general measure was required for the execution of this judgment.

      III. Conclusion of the respondent state

The government considers in the light of the above that no further action is required pursuant to the present judgment in the light of Bulgaria’s obligations under Article 46, paragraph 1, of the judgment.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)1939

Execution of the judgments of the European Court of Human Rights
Hasan and Chaush and Supreme Holy Council of the Muslim Community
against Bulgaria

(Hasan and Chaush, application No. 30985/96, judgment of 26/10/2000, Grand Chamber
Supreme Holy Council, application No. 39023/97, judgment of 16/12/2004, final on 16/03/2005)

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 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 unjustified interferences by the authorities in the internal organisation of the divided Bulgarian Muslim community, between 1995 and 1997, due to the replacement of its recognised leadership and to the manner in which the executive participated in the organisation of a conference aimed to unify this community (violations of Article 9); as well as the lack of effective remedy in this respect (case of Hasan and Chaush, violation of Article 13) (see details in Appendix);

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

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

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)193

Information on the measures taken to comply with the judgments in the cases of
Hasan and Chaush and Supreme Holy Council of the Muslim Community
against Bulgaria

      Introductory case summary

The applicants in these two cases are the representatives of the two rival factions which, since the democratic changes of 1989, dispute the direction of the Muslim community in Bulgaria.
The cases concern the authorities' unjustified interference between 1995 and 1997 in the internal organisation of a divided Muslim community, due to the replacement of its recognised leadership and to manner in which the executive participated in the organisation of a conference in 1997 aimed to unify this community (violations of Article 9). The first case also concerns the repeated refusal of the Bulgarian Council of Ministers to comply with the Supreme Court's judgments quashing the refusal to register the new leadership of the community (violation of Article 13).
The European Court noted in the first case that the provisions of the Religious Denominations Act of 1949 did not meet the required standards of clarity and predictability and allowed unfettered discretion to the executive in registering religious denominations.
In the second case the Court observed that the authorities did not remain a neutral mediator between opposing groups, but rather insisted on unification despite the decision of the leaders of the applicant organisation to withdraw. In consequence, the authorities' actions (notably those of the Directorate of Religious Denominations, a government agency) had the effect of compelling the divided community to accept a single leadership against the will of one of the two rival leaderships. The leaders elected by the 1997 conference obtained the status of the sole legitimate leadership of the Muslim community and, as a result, the applicant organisation was deprived of the possibility of continuing to manage the affairs and assets of the part of the Muslim community it represented.

      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

Hasan and Chaush 30985/96

-

10 000 BGN

10 000 BGN minus 18 655,87 FRF

20 000 BGN minus 18 655,87 FRF

Paid on 30/01/2001

Supreme Holy Council of the Muslim Community
39023/97

-

5 000 EUR

5 000 EUR

10 000 EUR

Paid on 16/06/2005

b) Individual measures

The government considers that the individual measures in this group of cases have to be examined in the light of the general measures taken for the execution of these two judgments, namely of the adoption in 2002 of a new Religious Denominations Act (hereafter - the “2002 Act”). The authorities indicated in this respect that the 2002 Act entrusts the Sofia City Court with the registration of the religious organisations and of their leaders, and no longer the executive as was the case at the time of the facts incriminated in theses cases (for more details on the general measures, see below).

As to the current situation of the applicant parties in these cases, the government indicates that the two rival factions to which the applicants belong continue to dispute the direction of the Muslim community in Bulgaria.

During the period 2005-2010, the applicant faction in the case of Hasan and Chaush asked the Sofia City Court to register the decisions taken at several national conferences of the Muslim community. Each of these requests was challenged by the applicant faction in the case of Supreme Holy Council of the Muslim Community and finally they were all rejected.

The most recent national conference took place on 12/02/2011. This conference elected new governing bodies and adopted a new statute. By a final judgment of 20/04/2011, the Sofia Court of Appeal granted the registration of the results of this new conference. The registration was made in April 2011.

The Government underlines further that since the adoption of the two judgments concerning the organisation of the Muslims in Bulgaria, the competent domestic authorities have abstained from any arbitrary measure which could have the effect of favouring one of the rival factions and that they have not taken practical steps aimed at compelling the community to accept a single leadership.

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

      II. General measures

1) Problems related to the arbitrary replacement of the Muslim community's leadership and to the authorities' interference in the organisation of the unification conference in 1997

The authorities consider that the new Religious Denominations Act of 2002, which entered into force in 2003, represents a sufficient guarantee to prevent new, similar violations in the future. It should be noted in particular that from then on, a judicial body - the Sofia City Court - and no longer the executive, is competent to register religious communities wishing to obtain legal personality. The information concerning the governing bodies and the bodies or persons who represent the religious organisation is recorded in a public register at the Sofia City Court (Section 18 of the 2002 Act).

Furthermore, the Ministry of Justice sent the judgments of the European Court to the competent courts to ensure that applicable domestic law is interpreted in conformity with the Convention. The judgment in the case of the of Supreme Holy Council of the Muslim Community was also sent to the Directorate of Religious Denominations which transmitted it to the local authorities competent for the registration of regional leaders of religious denominations.

Finally, the authorities consider that the seminars on the Convention and the European Court's case law organised by the National Institute of Justice are also relevant measures for the execution of these cases (more that 23 seminars for more than 798 participants - judges, prosecutors and national experts - took place in the period 2001-2006, of which 3 seminars on Article 9).

2) Domestic remedy

Following the entry into force of the 2002 Religious Denominations Act, the Bulgarian Council of Ministers is no longer competent to approve the registration or the modification of the statute of religious denominations. As indicated above, these are issues to be decided by the domestic courts. The authorities consider that following this legislative change the violation found in the case of Hasan and Chaush due to the refusal of the Council of Ministers to comply with the judgments of the Supreme Court ordering to them to register a leader of the Muslim community can not be repeated.

3) Publication: The judgments were published on the website of the Ministry of Justice www.mjeli.government.bg

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)19410

Execution of the judgment of the European Court of Human Rights
Olujić against Croatia

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”)11,

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

Case name (App. No.)

Judgment of

Final on

Olujić (22330/05)

05/02/2009

05/05/2009

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)194

Information about the measures to comply with the judgment in the case of
Olujić against Croatia

DG-HL
13 SEP. 2011

    SERVICE DE L'EXECUTION DES ARRÊTS DE LA CEDH

REPUBLIC OF CROATIA
GOVERNMENT AGENT OF THE REPUBLIC 0F CROAT1A
BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

 

Class: 004-01/09-01/75
Reg.No.: 514-10JPK-11-13
Zagreb, 13 September 2011

Mrs Geneviève MAYER
Mead of Department
DEPARTMENT FOR THE EXECUTION OF
JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS
DIRECTORATE GENERAL OF HUMAN RIGHTS — DG II
SECRETARIAT GENERAL
COUNCIL OF EUROPE
F-67075 Strasbourg Cedex France

Application No. 22330/05
Olujić v. Croatia

Dear Madam,

Following our letters of 6 July 2009 and 11 November 2010, the Government would like to provide further clarification on the execution of the Olujić v. Croatia judgment of 5 February 2009. Namely, the Government would like to provide thorough information on specific provisions relevant for the execution of the above-mentioned judgment.

Individual measures of the execution

Disciplinary proceedings are conducted in accordance with applied provisions of the Criminal Procedure Act (Article 72 of the National Judicial Council Act OG 116/2010, 57/2011). Therefore the applicant had the right to request reopening of the disciplinary proceedings based on the Article 502 of the Criminal Procedure Act (OG 152/08). The said Article 502 provides:

“The provisions on the reopening of criminal proceedings shall also apply when a motion for the revision of a final judgment based on the ruling of the Constitutional Court of the Republic of Croatia (hereinafter: Constitutional Court) annulling or cancelling the regulation under which the final judgment was rendered, or based on a decision of the European Court of Human Rights related to a reason for the reopening of criminal proceedings."

General measures of the execution

1. Regarding the issue of exclusion of the public from the disciplinary proceedings before the National Judicial Council (further: NJC), the Government emphasises the fact that the new Rules of the NJC (OG 73/11) came into force and previous Rules of the NJC (OG 13/07) ceased to be valid. The relevant provision regarding public nature of NJC’s work is stipulated in Chapter IV of the Rules of the NJC (OG 73/11) and reads as follows:

"Article 10

(1) The public nature of the work of the Council is provided for by regular reports on the sessions, decisions and other activities of the Council.
(2) Sessions of the Council where general issues are discussed and decisions rendered shall be public.
(3) The proceedings to appoint judges and presidents of courts shall be public
(4) In proceedings to dismiss judges, suspend judges from duty, give approval for instituting criminal proceedings, or approval for deprivation of liberty, and in disciplinary, proceedings, the public shall be excluded. At the request of the judge against whom these proceedings are being conducted the Council may hold a public session.
(5) Recording of sound and vision at public sessions of the Council shall be permitted only on the basis of a special decision by the Council.
(6) The part of the session at which deliberation and voting take place shall be without the public but the announcements of decisions by the Council are always public.
(7) Announcements to the public media shall be given by the president of the Council, a member of the council appointed by him or the Council, depending on whether the public needs to be informed urgently about a specific matter. If due to urgency the announcement was made by the president of the Council or a member of the Council appointed by him, the president of the Council shall inform the Council accordingly at the next session."

2. In relation to the lack of objective impartiality of the members of the NJC during the disciplinary proceedings it is to note that the legislation was changed from the time of the case because a new NJC Act (OG 116/2010) carne into force on 13 October 2010 and was amended on 13 May 2011 (OG 57/2011). New provision regarding the lack of impartiality of the members of the NJC in disciplinary proceedings is prescribed in the Chapter III on Scope and Manner of Work of the NJC of the NJC Act (OG 116/2010, 57/2011)112 and reads:

"Article 42

(1) The competence of the Council shall include:

- conducting disciplinary proceedings and deciding on the disciplinary responsibility of judges…

(2) Members of the Council are exempt from performing the duty of member of the Council in proceedings to appoint judges, appointment and dismissal of the presidents of courts, transfer of judges, decisions on dismissal of judges, disciplinary proceedings, conducting proceedings to enrol candidates in the state School for Judicial Officers and proceedings to take the final examinations, management and control of declarations of assets of judges and in proceedings to decide on judges' immunity if the candidate or judge, or one of the candidates or judges:

1) is his or her spouse or extra-marital partner or an in-law to the second degree regardless if the marriage or extra-marital relationship has ended or not,
2) is his or her blood relative of any degree, and of the lateral line to the fourth degree,
3) is acting as guardian, ward, adoptive parent, adopted child, foster parent, fostered child, accommodated person or host,
(3) Members of the Council, as soon as they learn of the existence of one of the reasons for exemption from paragraph 2 of this Article, shall immediately stop performing all activities in the proceedings and to inform the Council accordingly.

(4) If a member of the Council, aside from the cases in paragraph 2 of this Article, knows of circumstances which may cause doubt in his impartiality in the proceedings from paragraph I of this Article, shall immediately inform the Council of this fact, who will render the appropriate decision."

Moreover, the new Rules of the NJC (OG 73/11) introduced following provision with respect to the communication with the media stipulated in the above-mentioned Article 10 paragraph 7:

"(7) Announcements to the public media shall he given by the president of the Council, a member of the council appointed by him or the Council, depending on whether the public needs to be informed urgently about a specific matter. If due to urgency the announcement was made by the president of the Council or a member of the Council appointed by him, the president of the Council shall inform the Council accordingly at the next session."

Therefore, members of the NJC are not allowed to comment on disciplinary procedure until the decision is final, nor are they allowed to give statements about the judge against whom the disciplinary procedure is conducted.

3. As for the principle of equality of arms in the disciplinary proceedings against judges before the NJC, the Government reiterates relevant Articles stipulated in the NJC Act (OG 116/2010, 57/2011):

"Article 70

(1) In proceedings to decide on the disciplinary responsibility the judge against whom the proceedings are being conducted must be given the opportunity to present his or her defence in person, in writing or through the defence counsel of his or her choice.
(2) The decision establishing that a judge is liable for a disciplinary offence and imposing a disciplinary penalty may only relate to the disciplinary offence and person denoted by the applicant in the complaint.
(3) The decision must be drawn up and dispatched to the parties within 15 days of being rendered

Article 71

(1) The judge has the right to an appeal against a decision to dismiss or on disciplinary responsibility which shall postpone the execution of the decision.
(2) The applicant has also the right to appeal against a decision on disciplinary responsibility.
(3) An appeal has to be lodged with the Constitutional Court of the Republic of Croatia within fifteen days from the day of delivery of the decision.

Article 72

(1) In the conduct of disciplinary proceedings the provisions of the Criminal Procedure Act are applied mutatis mutandis, if this Act does not prescribe otherwise.
(2) In rendering a decision on disciplinary responsibility and imposing a disciplinary penalty, the Council is not bound by the applicant's proposal for conduct of disciplinary proceedings.
(3) In disciplinary proceedings no fee is payable and the costs of the proceedings shall be borne by the court in which the judge holds office."

On another note, the first instance decision in disciplinary proceedings can be contested by a judge against whom the procedure was conducted or by a person who instigated the proceedings by a suspensive appeal to the Constitutional Court and circumstances which render impartiality of a decision doubtful can once more be reviewed by the Constitutional Court of the Republic of Croatia.

4. In terms of measures regarding the length of proceedings before the Constitutional Court, the Constitution of the Republic of Croatia (OG 85/10) was amended specifically in that respect. Relevant Article 123 paragraphs 4 and 5 of the Constitution of the Republic of Croatia provide:

“Article 123

(4) A judge shall have the right to lodge an appeal against a decision by the National Judicial Council on disciplinary accountability with the Constitutional Court within 15 days after the date on which the decision has been served. The Constitutional Court shall decide on the appeal in the manner and by applying the procedure as determined by the Constitutional Act on the Constitutional Court of the Republic of Croatia.

(5) In the cases specified in paragraphs (4) and (5) of this Article, the Constitutional Court shall rule within no more than 30 days from the day the appeal has been lodged. Such ruling of the Constitutional Court shall exclude the right to a constitutional petition."



In light of all the measures taken, considering the facts of the case established by the ECtHR, the Government deems that the Croatian legislation is in accordance with the ECtHR standards and no other measures (individual or general) are required to assure that no future violations of this kind occur.

Therefore, in accordance with Article 46§1 of the Convention, the Government of Croatia proposes the closure of the execution procedure and the adoption of a final resolution (Article 46 paragraph 2 of the Convention in relation to Rule 17 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlement.

Yours faithfully,
Štefica Stažnik
Government Agent

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)19513

Execution of the judgments of the European Court of Human Rights
Peša and 2 other cases against Croatia

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”)14,

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

 

Case name (App. No.)

Judgment of

Final on

1

Peša (40523/08)

08/04/2010

08/07/2010

2

Getoš-Magdić (56305/08)

02/12/2010

02/03/2011

3

Hađi (42998/08)

01/07/2010

01/10/2010

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute each of the judgments listed in the table above;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report for each case provided by the government (see appendices);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgments;

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

      DECIDES to close the examination thereof.

Appendix 1 to Resolution CM/ResDH(2011)195

Information about the measures to comply with the judgment in the case of
Peša against Croatia

Fichier:Coat of arms of Croatia.svg

 

DG-HL

13  AVR.  2011

SERVICE DE L’EXECUTION DES ARRÊTS DE LA CEDH

REPUBLIC OF CROATIA

GOVERNMENT AGENT OF THE REPUBLIC OF CROATIA BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

 
   

Class: 004-01/10-01/161
Reg. No.: 514-10/MB-11-18
Zagreb, April 5 2011

                      Mrs Geneviève Mayer
                      Head of Department
                      DEPARTMENT FOR THE EXECUTION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS DIRECTORATE GENERAL OF
                      HUMAN RIGHTS - DG II SECRETARIAT GENERAL
                      COUNCIL OF EUROPE
                      F-67075 Strasbourg Cedex
                      France

Application no. 40523/08
Peša v. Croatia

Dear Ms Mayer,
The Government of the Republic of Croatia has the honor to submit herewith an

ACTION REPORT

on individual and general measures undertaken in the execution of ECtHR judgment in

the case of Peša v. Croatia, application No. 40523/08,
judgment of April 8 2010, final on July 8 2010

In its judgment of April 8 2010 the ECtHR found violations of Article 5 paragraphs 3 and 4, and Article 6 § 2 of the Convention.

ECtHR found that the extension of the applicant's detention in the period of February 15 2008 to March 18 2009 could not be justified by any reasons given by national courts, and therefore determined a violation of Article 5 § 3 of the Convention.

Further, the ECtHR found a violation of Article 5 § 3 of the Convention due to the fact that the Constitutional Court, did not decide on the applicant's constitutional complaints in a timely manner, and did not address the issue of the constitutionality of his detention (his constitutional complaint was dismissed).

Finally, the ECtHR found that certain statements made by public officials (the General Prosecutor, the Head of the Police, the Prime Minister and the President), and published in the press, prejudged the assessment of facts by the competent judicial authority, and therefore constituted the breach of the applicant's right to be presumed innocent (violation of Article 6 § 2 of the Convention).

1. INDIVIDUAL MEASURES

As the ECtHR established in the abovementioned judgment, the applicant had been released from detention on the basis of the Constitutional Court decision of March 17 2009 (during the proceedings before ECtHR).

Therefore, considering the nature of the violations found in this case, and relevant facts of the case, no special individual measures are necessary in the execution process.

2. GENERAL MEASURES

a) Publication and dissemination of the judgment:

The judgment has been translated into Croatian language and published on the web page of the Ministry of Justice (http://www.mprh.hr/Default.aspx?sec=360).

The judgment has also been disseminated to the Constitutional Court, the Supreme Court and the County Court in Zagreb. In that sense, ail relevant court authorities have been informed of ECtHR findings relating to the criteria for the extension of detention. Since the applicant has been released from detention (sec no. 1. of the action report), no other measures concerning the violation of Article 5 § 3 are necessary.

Regarding the violation of Article 6 § 2 of the Convention, the analysis of the judgment has been sent out to The President of the Republic, the Government, the General Prosecutor's Office, the Ministry of the Interior and Ministry of Justice (including the PR Service).

Accordingly, ail high level state officials have been acquainted with the need of honoring the presumption of innocence in their communication with the media relating to ongoing criminal proceedings.

b) General measures relating to public statements by state officials

All high level state officials have been acquainted with ECtHR's findings in this case, with the goal of preventing similar situations in the future.

Translation of the judgment, along with its analysis, was delivered to the President of the Republic, and ail high level employees of the President's office were informed of the findings of ECtHR in this case.

At one of the Government sessions, the Minister of Justice informed all members of the Government (including the ministers' deputies) of the judgment in this case, especially regarding the violation found by ECtHR as a result of public statements of high level officials. Members of the Government were acquainted with the need to keep in mind the findings of this case in their future public statements and communication with the media.

Based on the findings of ECtHR in this case, The Ministry of Interior has adopted "Guidelines in relations with the media". This document contains instructions for all police employees authorized to give information to the public on how to provide relevant information without jeopardizing the rights of those involved in an incident or investigation (both the suspect and the victim). Additionally, the Guidelines predict coordination between police authorities and the prosecutors' office and/or USKOK (Office for the Prevention of Corruption and Organized Crime) in informing the public of investigations of public interest. The Ministry of Interior has also held a number of educational seminars regarding the issue of communication with media.

The State Prosecutors' Office has analyzed the judgment at the assembly of its Criminal Division, informing all state prosecutors and USKOK officials of the findings in this case.

Since the violation of Article 6 § 2 of the Convention found by the ECtHR in this case, based on statements made by high state officials, is an individual violation, the Government deems that no further general measures with respect to this part of the judgment are necessary.

c) Measures concerning the length of proceedings before the Constitutional Court

On September 7 2010, the Constitutional Court passed a Decision on the establishment of the Third section of the Constitutional Court in charge of deciding on constitutional complaints. The Decision was published in the Official Gazette No. 109/2010.

The Third Section established by this Decision, is in charge of deciding on constitutional complaints in cases which require special promptness, such as complaints relating to the constitutionality of detention.

The Government considers that the formation of this new Section of the Constitutional Court is sufficient warranty for ensuring that no further violations of this kind occur.

3. JUST SATISFACTION

Just satisfaction rewarded to the applicant has been paid on September 1 2010, and payment information on a prescribed form delivered to the Execution's department on March 28 2011.

In light of ail measures taken, considering the facts of the case established by ECtHR, the Government deems that no other measures (individual or general) are required to assure that no future violations of this kind occur.

Therefore, in accordance with Article 46 § 1 of the Convention, the Government proposes to the Committee of Ministers the adoption of a final resolution and closure of the execution supervision process.

Respectfully,


Štefica Stažnik
Government Agent

Appendix 2 to Resolution CM/ResDH(2011)195

Information about the measures to comply with the judgment in the case of
Getoš-Magdić against Croatia

 

ACTION REPORT
CASE : GETOŠ-MAGDIĆ V. CROATIA
APPLICATION No. 56305/08
JUDGMENT OF 02/12/2010
FINAL ON 02/03/2011
(LEAD : PEŠA V. CROATIA)

DG – HL

25  JUIL.  2011

SERVICE DE L’EXECUTION DES ARRETS DE LA CEDH

   

In the case of Getoš-Magdić v. Croatia, the ECtHR found a violation of Article 5 § 4 of the ECHR, consisting of the failure of the Constitutional Court of RoC to decide speedily on the applicant's constitutional complaint, making it impossible to ensure the proper and meaningful functioning of the system for the review of the applicant's detention. ECtHR noted (§ 102 of the judgment) that "the practice of the Constitutional Court is to declare inadmissible each constitutional complaint where, before it has given its decision, a fresh decision extending detention has been adopted in the meantime".

Similar conclusions were drawn by ECtHR in the cases of Peša v. Croatia, and Hađi v. Croatia. Action reports in the cases of Peša y. Croatia and Hađi v. Croatia were delivered before these three cases were classified as a group.

1. INDIVIDUAL MEASURES

As stated in the judgment (§ 88), the Constitutional Court, deciding on another constitutional complaint by the applicant, found that the grounds for the applicants' detention were no longer sufficient and ordered her immediate release. As stated in §63 of the judgment, the applicant was released on the same day when Constitutional Court rendered its decision.

Therefore, the constitutionality of applicants' detention has been examined by the Constitutional Court, so no individual measures are necessary.

2. GENERAL MEASURES

The judgment has been translated to Croatian and disseminated to all relevant authorities — Parliamentary Committee for Constitution, and the political system, Parliamentary Committee for judiciary, Parliamentary Committee for human rights and rights of national minorities, The constitutional Court of RoC, the Supreme Court, and County Courts in Zagreb and in Osijek.

Croatian translation of the judgment was published on the web page of the Ministry of justice (www.mprh.hr).

On September 7 2010, the Constitutional Court passed a Decision on the establishment of the Third section of the Constitutional Court in charge of deciding on constitutional complaints. The Decision was published in the Official Gazette No. 109/2010 (and was delivered to the Department for the Execution of Judgments of the ECtHR as part of the Action report in the case of Peša v. Croatia).

The Third Section established by this Decision decides on constitutional complaints in cases which require special promptness, such as complaints relating to the constitutionality of detention.

Enclosed to the Action report, the Government of RoC delivers first and two recent decisions of the Third section of the Constitutional Court of RoC relating to cases of the constitutionality of detention (U-III-4446/2010 of September 14 2010, U-III-1714/2011 of April 7 2011 and U-III-2815/2011 of June 8 2011).

These decisions show that the duration of proceedings regarding constitutionality of detention before the Constitutional Court has been significantly reduced. Decisions of Third section of the Constitutional Court are rendered before the expiration of detention ordered by the disputed decisions of the Supreme Court. Such promptness of proceedings before the Third section of the Constitutional Court eliminates the possibility of dismissing similar constitutional complaints on the same grounds as those in this case, as well as in cases Peša v. Croatia and Hađi v. Croatia.

The Government considers that the formation of this new Section of the Constitutional Court, as well as its recent practice and proven promptness in proceedings, constitute sufficient warranty for ensuring that no further violations of this kind occur.

3. JUST SATISFACTION

Just satisfaction was paid to the applicant on July 2 2011, and payment information was delivered to the Department for the Execution of Judgments of the ECtHR on July 14 2011.

In light of the measures taken, considering the facts of the case established by the ECtHR, the Government deems that no other measures (individual or general) are required to assure that no future violations of this kind occur.

Therefore, the Government proposes to the Committee of ministers the closure of the execution supervision procedure in the Peša group, and the adoption of a final resolution (Article 46 paragraph 2 of the Convention in relation to Rule 17 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

Appendix 3 to Resolution CM/ResDH(2011)195

Information about the measures to comply with the judgment in the case of
Hađi against Croatia

ACTION REPORT
CASE: Hadi v. Croalla
application no. 42998/08, Judgment of 1/07/2010, final on 1/10/2010

In its judgment, the ECtHR found a violation of article 5 § 4 of the Convention, based on the failure of the Constitutional Court to speedily decide on the Iawfulness of the applicant's detention.

The procedure before the Constitutional Court lasted for 34 days. While the case was pending before the Constitutional Court, the impugned decision became inoperative due to the fact that the court competent for ordering detention (Osijek Municipal Court) issued a fresh decision extending applicant's detention. Therefore, the applicants' constitutional complaint was declared inadmissible.

1. INDIVIDUAL MEASURES

Considering the nature of the violation, no individual measures are necessary (nor possible).

2. GENERAL MEASURES

The judgment has been translated into Croatian and published on the web page of the Ministry of justice (http://www.mprh.hr/Default.aspx?sec=360).

The judgment has also been disseminated to the Constitutional Court, the Supreme Court, the County court in Osijek and the Municipal Court in Osijek. Therefore, the relevant authorities have been informed of the findings of the ECtHR in this case.

On September 7 2010, the Constitutional Court passed a Decision on the establishment of the Third section of the Constitutional Court in charge of deciding on constitutional complaints. The Decision was published in the Official Gazette No. 109/2010.

The Third Section established by this Decision decides on constitutional complaints in cases which require special promptness, such as complaints relating to the constitutionality of detention.

The Government considers that the formation of this new Section of the Constitutional Court is sufficient warranty for ensuring that no further violations of this kind occur.

3. JUST SATISFACTION

Just satisfaction rewarded to the applicant has been paid on November 25 2010, and payment information on a prescribed form was delivered to the Execution's department on March 28 2011.

In light of all measures taken, considering the facts of the case established by ECtHR, the Government deems that no other measures (individual or general) are required to assure that no future violations of this kind occur.

Therefore, the Government proposes to the Committee of ministers the closure of the execution supervision procedure, and the adoption of a final resolution (Article 46 paragraph 2 of the Convention in relation to Rule 17 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)19615

Execution of the judgments of the European Court of Human Rights
Kyriakades and Taliadorou and Stylianou against Cyprus

(Kyriakides, Application No. 39058/05, judgment of 16 October 2008, final on 16 January 2009;
Taliadorou and Stylianou, Application No. 39627/05, judgment of 16 October 2008, final on 16 January 2009)

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

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

Recalling that the violation of the Convention found by the Court in these cases concerns disregard of the applicants’ right to protection of their reputation, following the Supreme Court’s failure in 2005 to provide adequate grounds for a decision overturning the award of compensation for non-pecuniary damage sustained by the applicants as a result of their unjustified dismissal by the state authorities (violation of Article 8) (see details in Appendix);

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

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

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(2011)196

Information on the measures taken to comply with the judgments in the cases of
Kyriakades and Taliadorou and Stylianou against Cyprus

      Introductory case summary

These cases concern damage to the reputation of the applicants, senior officers in the Cyprus Police. In 2005 the Supreme Court failed to provide adequate grounds for a decision overturning an award of compensation for non-pecuniary damage to the applicants, following their unjustified dismissal by the state authorities, so disregarding of the applicants’ right to protection of their reputation (violation of Article 8).

      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

Kyriakides (39058/05)

-

5 000 EUR

2 650 EUR

7 650 EUR

 

Paid on 30/01/2009

Taliadorou and Stylianou (39627/05)

-

-

2 000 EUR

2 000 EUR

 

Paid on 23/01/2009

b) Individual measures

The European Court awarded just satisfaction in response to the non-pecuniary damage sustained in the case of Kyriakides. In the Taliadorou and Stylianou case, the applicants submitted no request for compensation. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

In response to the Supreme Court’s failure to provide adequate grounds for its decision, the Cypriot authorities indicated that Article 30(2) of the Cypriot Constitution provides that domestic courts’ decisions must be reasoned. An unreasoned judgment constitutes grounds for appeal and the Cypriot authorities provided examples of inadequately reasoned judgments overruled (Costas Glykys against Limassol Municipality, Civil appeal 10005, judgment of 18/12/1998; Pioneer Candy Ltd and Another against Stelios Tryfon & Sons Ltd, (1981) 1 CLR 540; Neophytou against Police, (1981) 2 CLR 195).

In October 2008 counsel for the Human Rights Sector of the Law Office of the Republic of Cyprus transmitted the European Court’s judgments to the Supreme Court, the Bar Association, the Parliamentary Committee on Human Rights, the Parliamentary Committee on Legal Affairs, the Ministry of Justice and all Counsels for the Republic. The judgments were accompanied by a detailed analysis of the European Court’s reasoning.

The European Court's judgment in the Kyriakides case was published in the Cyprus Law Journal at [2009] 1 CLJ 39. The judgment in the Taliadorou and Stylianou case was published in the Cyprus Law Journal at [2009] 1 CLJ 61.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)19716

Execution of the judgment of the European Court of Human Rights
Kafkaris against Cyprus

(Application No. 21906/04, judgment of 12 February 2008 – Grand Chamber)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the quality of the law applicable in 1987, when the applicant committed an offence which led to his conviction in 1989 by the Limassol Assize Court, in that it did not enable him to discern, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution (violation of Article 7) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)197

Information about the measures to comply with the judgment in the case of
Kafkaris against Cyprus

      Introductory case summary

The case concerns the quality of the law applicable at the time that the applicant committed an offence in 1987 leading to his conviction for murder in 1989 by the Limassol Assize Court, which did not enable him to discern, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution (violation of Article 7).

The European Court noted that it was common ground between the parties that at the time the applicant was prosecuted and convicted, the offence of premeditated murder was punishable by mandatory life imprisonment under section 203 (2) of the Criminal Code and that he had been sentenced under that provision. However, at the time the applicant committed the offence, both the executive and the administrative authorities understood the Prison Regulations (in Prison Discipline Law (Cap.286)), to impose a maximum limit of twenty years to be served by any person who had been sentenced to life imprisonment.

The Court therefore concluded that, at the time the applicant committed the offence, Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, the scope of the penalty of life imprisonment and the manner of its execution. The European Court noted “that there [was] a violation of Article 7 of the Convention with regard to the quality of the law applicable at the material time” … but “no violation of this provision in so far as the applicant complains about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence” (§152).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

13 465 EUR

13 465 EUR

Paid on 16/04/2008

b) Individual measures

The applicant did not seek compensation for pecuniary damage. He submitted that a finding of a violation in respect of his complaints and his consequent release from prison would constitute adequate satisfaction. However, the European Court held that “Having regard to all the circumstances of the case … a finding of a violation of Article 7 of the Convention constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant.”(§170). A sum was awarded for the expenses incurred during the process .

Following a series of failed legal challenges at the national level17 the applicant made a further application to the European Court which was found inadmissible on 21 June 2011 (see Kafkaris 9644/09). In that application, the applicant complained inter alia under Article 46 of the Convention that the government had failed to execute the Grand Chamber’s judgment. In particular, the applicant claimed that he was still being held in detention despite the Grand Chamber’s ruling of a violation of Article 7 of the Convention (§72 of the inadmissibility decision). The European Court rejected this argument as incompatible ratione materiae with the Convention, relying on its conclusions in the Grand Chamber judgment that “…there was no element of retrospective imposition of a heavier penalty involved since in view of the substantive provisions of the Criminal Code, it could not be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years’ imprisonment. The violation of [Article 7] was confined to the “quality of the law” at the time of the commission of the Offence”. The Court noted that “…this finding should be seen in conjunction with the Grand Chamber’s finding under Article 5(1) of the Convention that the applicant’s detention since 2 November 2002 remained lawful”. (§§76-77 of the inadmissibility decision). In these circumstances, no other individual measure was required by the Committee of Ministers.

      II. General measures

In May 1996 a new Prisons Law abolished and replaced the Prison (General) Regulations 1981 which were in force at the time of commission of the offence and had given rise to the problem of quality of law as found in the Grand Chamber judgment.

Some further significant amendments to the 1996 Law not directly related to the violation of Article 7, were introduced in 2009 following the Grand Chamber judgment. Section 14 of the above Law which provided for the conditional release of prisoners including life-prisoners, by order of the President of the Republic with the agreement of the Attorney-General (see §§.59 and 102 of the Grand Chamber judgment) was replaced by new provisions providing for the establishment of an independent Release Board for the release of prisoners on licence. A life prisoner who has served at least twelve years of his sentence can apply to the Release Board for conditional release (see §§ 33-44 of the inadmissibility decision in Kafkaris 9644/09).

Under cover of the Human Rights Sector of the Government Agent’s Office summarising the judgment and its reasoning, copies of the judgment were sent to the Ministry of Justice and Public Order, the presidents of the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees. The judgment has also been published (also in Greek translation) on the Human Rights Section of the Legal Service website (www.law.gov.cy) and has been published in Greek translation in the Cyprus Law Journal and the web-site of the Cyprus Bar Association.

      III. Conclusions of the respondent state.

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)19818

Execution of the judgment of the European Court of Human Rights
Topp against Denmark

(Application No. 25907/02, judgment of 1 December 2005, friendly settlement)

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 final judgment transmitted by the Court to the Committee;

Recalling that the applicant’s complaint declared admissible in this case concerned the length of proceedings before the Probate Court regarding ownership of a house which was part of the estate of a deceased person (complaint under Article 6, paragraph 1);

Whereas in this case the Court, having taken formal note of the friendly settlement reached by the government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols decided, unanimously, to strike this case out of its list and took note of the parties’ undertaking not to request a re-hearing of the cases before the Grand Chamber;

Whereas under the terms of this friendly settlement it was agreed that the government of the respondent state would pay the applicant 74 500 DKK, within three months as from the notification of the judgment;

Recalling that the striking-out of a case which has been declared admissible is effected by means of a final judgment which the Court forwards to the Committee of Ministers to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

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

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

Having satisfied itself that on 19 December 2005, within the time-limit agreed to under the terms of the friendly settlement, the government of the respondent state paid the applicant the sums provided for in the friendly settlement and that no other measure was required in these cases to comply with the Court’s judgment;

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

      DECIDES to close its examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)19919

Execution of the judgments of the European Court of Human Rights
in 4 cases against Denmark

(see below)

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;

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

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

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

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

      DECIDES to close the examination of these cases.

Information on the judgments in 4 cases against Denmark

Case
(Application No.)

Judgment of

Final on

Closure decision

Vasileva
(52792/99)

25/09/2003

25/12/2003

June 2004
885th meeting

Iversen
(5989/03)

28/09/2006

28/12/2006

October 2007
1007th meeting

Moesgaard Petersen
(32848/06)

11/12/2008

11/03/2009

June 2010
1086th meeting

Hasslund
(36244/06)

11/12/2008

11/03/2009

June 2010
1086th meeting

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20020

Execution of the judgment of the European Court of Human Rights
Amrollahi against Denmark

(Application No. 56811/00, judgment of 11 July 2002, final on 11 October 2002)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns disproportionate interference with the applicant’s right to respect for his family life on account of an expulsion order imposed against him in 1997 (violation of Article 8) (see details in Appendix);

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)200

Information about the measures to comply with the judgment in the case of
Amrollahi against Denmark

      Introductory case summary

The case concerns the disproportionate interference with the applicant’s right to respect for his family life on account of an expulsion order issued against him in 1997 which became final in 2000.

The applicant, an Iranian national, moved lawfully to Denmark in 1989 and married a Danish national. They have three children, all of Danish nationality, one of which is from an earlier relationship of the applicant’s wife. In 1997, the applicant was convicted of drug trafficking and sentenced to three years’ imprisonment followed by permanent expulsion from Denmark.

The European Court considered that, given the applicant’s significant family ties with Denmark and the fact that he had had no contact with his Iranian family since 1987, and taking into account that it was a practical impossibility for the applicant and his family to set up home elsewhere than in Denmark, the applicant’s expulsion would have the effect of separating the family, and would thus be disproportionate to the aims pursued. Therefore, the Court concluded that the implementation of the expulsion order would constitute a breach of Article 8 of the Convention.

      I. Individual measures

The European Court awarded no just satisfaction in the absence of a claim by the applicant.

Following the Court’s judgment, on the initiative by the prosecution, the Western High Court (Vestre Landsret), on 13/09/2002, revoked the decision relating to the applicant’s expulsion.

      II. General measures

The Danish authorities consider that the violation constituted a single incident resulting from the particular circumstances of the case. Given the direct effect of the Convention and the European Court’s case-law in Denmark, the publication and dissemination of the Court’s judgment should prevent similar violations, since the Court found the expulsion order to be in accordance with the law and pursuing a legitimate aim but disproportionate in this very specific case.

For this purpose, the judgment was published in the periodical EU-ret og Menneskeret (No. 5, 2002, pp. 232-235) and was disseminated to the relevant authorities.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20121

Execution of the judgments of the European Court of Human Rights
Kallio and Hannu Lehtinen against Finland

(Applications Nos. 40199/02 and 32993/02, judgments of 22 July 2008, final on 22 October 2008)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the unfairness of tax surcharge proceedings brought against the applicants, due to the administrative courts’ refusal to hold oral hearings and to hear the applicants' testimony or that of witnesses (violations of Article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)201

Information on the measures taken to comply with the judgments in the cases of
Kallio and Hannu Lehtinen against Finland

      Introductory case summary

These cases concern the unfairness of tax surcharge proceedings brought against the applicants, due to the administrative courts' refusal, in decisions of 2001 and 2002, to hold oral hearings and to hear the applicants' testimony or that of witnesses (violations of Article 6§1).
The European Court found that in the circumstances of the applicants' cases, where the crucial question had been the credibility of the applicants' and witnesses' statements, a direct assessment of their evidence given in person would have been necessary.

      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

Kallio (40199/02)

-

3 000 EUR

5 000 EUR

8 000 EUR

Paid on 22/01/2009

Hannu Lehtinen (32993/02)

-

3 000 EUR

8 000 EUR

11 000 EUR

Paid on 21/01/2009

b) Individual measures

The Finnish authorities stated that, according to the Administrative Judicial Procedure Act (Act No. 586/1996), an administrative decision that has become final may be subject to an extraordinary appeal lodged by an individual by means of procedural complaint, restoration of expired time or annulment. The application for annulment of such decision is made before the Supreme Administrative Court, in general within five years from the date when the decision became final. The applicants may therefore request re-opening of the administrative proceedings following the European Court's judgments.

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

      II. General measures

The judgments of the European Court were published in the Finlex database (www.finlex.fi). Summaries of the judgments in Finnish were published in the same database. Moreover, the judgments were sent out to numerous domestic authorities, including the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Parliament / Constitutional Law Committee, the Supreme Court, the Supreme Administrative Court, the Ministries of Justice, Interior and Finance, the Turku Appeal Court, the Turku and Helsinki Administrative Courts, the South-western Finland Regional Tax Office and the Uusimaa Regional Tax Office.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20222

Execution of the judgment of the European Court of Human Rights
Juppala against Finland

(Application No. 18620/03, judgment of 2 December 2008, final on 2 March 2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the lack of sufficient reasons for the restriction on the right to freedom of expression of the applicant, who was convicted for defamation for having expressed her suspicion that her son-in-law had ill-treated his son (violation of Article 10) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)202

Information about the measures to comply with the judgment in the case of
Juppala against Finland

      Introductory case summary

The case concerns the violation of the right to freedom of expression of the applicant, who was convicted in February 2002 for defamation of T., her son-in-law, after she had taken her grandson to a doctor and voiced a suspicion that he might have been hit by his father (violation of Article 10).
The European Court noted that the applicant’s criminal conviction had been “prescribed by law” as it had been based on a reasonable interpretation of Chapter 27, Article 2(1) of the Penal Code in force at the time (until 01/10/2000). However, the Court found it alarming that the Court of Appeal had taken the view that, even though there was no doubt that she had seen her grandson’s bruised back, the applicant had not been entitled to repeat what the boy had told her, that is, that he had been hit by his father. Voicing a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure should be available to any individual without fear of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred. Moreover, it had not been argued before any court that the applicant had acted recklessly. The European Court thus concluded that the interference with the applicant’s right to freedom of expression had not been justified by sufficient reasons and had therefore failed to answer any “pressing social need”.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

3 616,41 EUR

3 000 EUR

2 695,98 EUR

9 312,39 EUR

Paid on 28/05/2009

b) Individual measures

The sums that the applicant had been sentenced to pay as a result of her conviction are covered by the just satisfaction awarded by the European Court, which also took into account the non-pecuniary damage sustained. The applicant may, under Finnish law, seek the reopening of criminal proceedings having infringed the European Convention of Human Rights (see, for example, the case of Nikula, Final Resolution ResDH(2006)51 adopted on 02/11/2006).

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

      II. General measures

In view of the direct effect given to the Convention and the European Court’s case-law in Finland and in order to encourage courts to take due account of it, the judgment of the European Court was published in the legal database Finlex (www.finlex.fi). A summary of the judgment in Finnish was published in the same database. The judgment was also sent out to numerous domestic authorities, including the Parliament/Constitutional Law Committee, the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Supreme Court, the Supreme Administrative Court, the Ministries of Justice and Interior, the Tampere District Court and the Turku Court of Appeal.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20323

Execution of the decision of the European Court of Human Rights
Leino against Finland

(Application No. 417/10, decision of 7 September 2010)

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly settlement were executed by the respondent state,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close its examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20424

Execution of the judgments of the European Court of Human Rights
in 2 cases against Finland

(see below)

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

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

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

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

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

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

      DECIDES to close the examination of these cases.

Information on the judgments in 2 cases against Finland

Application No.

Case name

Date of judgment

Date of final judgment

Decision to close

53678/00

Karhuvaara and Iltalehti

16/11/2004

16/02/2005

960 meeting
March 2006

56767/00

Selisto

16/11/2004

16/02/2005

960 meeting
March 2006

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20525

Execution of the judgments of the European Court of Human Rights
W., A.H., D. and A.L. against Finland

(Application No. 14151/02, judgment of 24 April 2007, final on 24 July 2007
Application No. 46602/99, judgment of 10 May 2007, final on 10 August 2007
Application No. 30542/04, judgment of 7 July 2009, final on 6 November 2009)
Application No. 23220/04, judgment of 27 January 2009, final on 27 April 2009

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the unfairness of certain criminal proceedings in that the applicants were convicted for sexual abuse of children on the basis of a video recording of the children’s statements, without having the opportunity to question the children (violations of Article 6, paragraph 1, taken together with Article 6, paragraph 3 (d) (violation of Article 6, paragraph 1 only in D) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order 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)205

Information about the measures to comply with the judgments in the cases of
W., A.H., D. and A.L. against Finland

      Introductory case summary

These cases concern the unfairness of criminal proceedings relating to the applicants’ convictions, final between 1998 and 2004, for sexual abuse of children. The European Court noted that the applicants had not been given the opportunity to put questions to the children during the proceedings, and the only direct evidence (virtually the sole evidence in W) against the applicants were the children’s’ videotaped statements (violation of Article, 6 paragraph 1, taken together with Article 6, paragraph 3 (d) (violation of Article 6, paragraph 1 only in D)).

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

W. (14151/02)

-

3,000 EUR

8,062

11,062 EUR

Paid on 24/10/2007

A.H. (46602/99)

-

3,000 EUR

6,000 EUR

9,000 EUR

Paid on 9/11/2007

D. (30542/04)

-

4 000 EUR

6 917 EUR

10 917 EUR

Paid on 08/02/2010

A.L. (23220/04)

-

3 000 EUR

402 EUR

3 402 EUR

Paid on 26/06/2009

b) Individual measures

The applicants had an opportunity to request the reopening of the proceedings (Chapter 31, Article 2, of the Code of Judicial Procedure). In addition, the European Court awarded them just satisfaction in respect of non-pecuniary damage. Consequently, no other individual measure appears necessary.

      II. General measures

The Code of Judicial Procedure was amended on 1 October 2003 to the effect that the testimony of a person under 15, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence only on condition that the accused has been provided with an opportunity to have questions put to the person testifying (Chapter 17, Article 11 (2)).

A press release was issued the same day as each judgment. Additionally, the judgments of the European Court were sent out to the relevant national authorities, as well as to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Committee for Constitutional Law of the Parliament, the Supreme Court and the Supreme Administrative Court. The judgments have been published in the legal database Finlex in English, along with summaries in Finnish (www.finlex.fi).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20626

Execution of the judgment of the European Court of Human Rights
Natunen against Finland

(Application No. 21022/04, judgment of 31 March 2009 – Final on 30 June 2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the applicant’s right to have adequate time and facilities for the preparation of his defence, in that the authorities, presumably during the pre-trial investigation in 2002, destroyed certain telephone recordings which made it impossible for the defence to verify its assumptions about the relevance of the recordings and to prove their correctness before the trial courts (violation of Article 6, paragraph 1 taken together with Article 6, paragraph 3(b)) (see details in Appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)206

Information about the measures to comply with the judgment in the case of
Natunen against Finland

Introductory case summary

This case concerns a violation of the applicant’s right to adequate time and facilities for the preparation of his defence, due to the destruction, by the authorities presumably, during the pre-trial investigation in 2002, of certain telephone recordings which made it impossible for the defence to verify its assumptions as to the relevance of the recordings and to prove their correctness before the trial courts (violation of Article 6(1) taken together with 6(3)(b).

The European Court found that there was no misconduct on the part of the authorities, who were obliged by the law in force at the time to destroy the impugned telephone recordings. However, the Court noted that a procedure where the investigating authority itself attempts to assess what information may or may not be relevant to the case, cannot comply with Article 6(1) (see §§47 and 49 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

--

2 500 EUR

3 800 EUR

6 300 EUR

Paid on 29/09/2009

b) Individual measures

The European Court considered that the award of just satisfaction in respect of non-pecuniary damage provided sufficient redress in this case, having regard in particular to the destruction of the telephone recordings.

Following the European Court’s judgment, the applicant lodged an extraordinary appeal with the Supreme Court on 27 August 2009. Taking into account the European Court’s judgment, the Supreme Court decided on 10 November 2010 not to vacate or set aside the judgment of the Helsinki Court of Appeal convicting the applicant, on the grounds inter alia that the conviction was not based solely on the telephone recordings but also on other evidence. Consequently, no other measure was considered necessary by the Committee of Ministers.

II. General measures

The relevant legislation was amended by Act 646/2003, which came into force on 1 January 2004. The new legislation states that superfluous information obtained through interception of telecommunications but not related to the offence, or pertaining to an offence other than that covered by the authorisation, is to be destroyed after the case has been definitively decided or removed from the docket (see §22 of the judgment).

A press release was given the same day the judgment was issued. Additionally, the judgment was disseminated to the relevant national authorities, as well as to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Committee for Constitutional Law of the Parliament, the Supreme Court and the Supreme Administrative Court. The judgment was published in the legal database Finlex in English, along with a summary in Finnish (www.finlex.fi ).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20727

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

(Application No. 62740/00, judgment of 31/03/2005, final on 01/07/2005)

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

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

Recalling that the violations of the Convention found by the Court in this case concern the applicant's inability to obtain police assistance to evict the unlawful occupiers of a plot of land he owned (violation of Article 6, paragraph 1 and Article 1 of Protocol No. 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)207

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

      Introductory case summary

This case concerns the fact that the applicant, following a judicial decision in his favour delivered in 1988, could not obtain police assistance to evict the unlawful occupiers of a plot of land he owned in Guadeloupe and which he finally sold in 2004, having lost all hope of recovering possession. The European Court found that the excessively sustained failure to execute the judicial decision, in the absence of any exceptional circumstance justifying such an abuse of authority, and the consequent uncertainty for the applicant as to the fate of his property, undermined his right to effective judicial protection (violation of Article 6§1). The Court also considered that the refusal in this case to provide police assistance, in the absence of any justification of public interest, had resulted in a form of private expropriation from which the unlawful occupant had benefited (violation of Article 1 of Protocol No. 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3000 EUR

-

3000 EUR

Paid on 02/06/2006 – 124,75 EUR paid as default interest on 17/11/2008

b) Individual measures

It is recalled that, besides the fact that the land at issue is no longer the applicant's property, he received various sums to compensate for the loss of enjoyment of his property and moral damages (judgments of the administrative court and decision of the Prefecture) for the gross negligence committed by the state in refusing to take part in the execution of the judicial decision at issue. Moreover, the European Court granted just satisfaction in respect of the non-pecuniary damage suffered by the applicant. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The European Court held, in particular, that the refusal to grant police assistance originated from “failings of the bailiffs and of the Prefect, or even from a deliberate refusal of the latter, in the particular local circumstances, to give their assistance during sixteen years in eviction proceedings” (§68 of the judgment). Although domestic courts held that such refusal was illegal (see the case-law of the Couseil d'Etat mentioned in the European Court's judgment), the damages granted to the applicant were not sufficient to compensate for the inaction of the competent authorities (§ 58 and 71 of the judgment). Finally, the violation does not have its origin in the law itself but in its implementation in the specific circumstances of the case by the relevant authorities, that is the bailiffs and especially the Prefect (§60 and 68 of the judgment).

In order to avoid new, similar violations, the judgment was brought to the attention of the competent authorities, with a view to facilitating its implementation in practice. Besides the dissemination of the judgment to the authorities concerned in the Matheus case, the judgment has also been permanently published since October 2008 on the Intranet site of the Ministry of Interior, where it is visible for all Ministry officials and for officials of its external offices, in particular for prefectures. More generally, the competent authorities - in particular Bailiffs - have access to this judgment via several publications. In this respect, reference is made to several publications of the Cour de Cassation: Information Bulletin of the Cour de Cassation No. 619 of 15/05/2005; Annual report 2008, section “studies”; Cour européenne des droits de l'homme 2002-2006 - arrêts concernant la France et leurs commentaires (published by the European Law Observatory of the Cour de Cassation). Finally, it can be noted that the judgment was presented in several broadly disseminated legal publications, either general or specialising in property law.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20828

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

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”)29,

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

Case name (App. No.)

Judgment of

Final on

Bousarra (25672/07)

23 September 2010

23 December 2020

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)208

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

Bousarra v. France (No. 25672/07)
Judgment of 23 September 2010, which became final on 23 December 2010

Action report from the French Government

This case concerns the deportation to Morocco of Mr Bousarra, a Moroccan national, whose continued presence on French territory had been considered by the national authorities to be incompatible with the imperative needs of public order. This measure was ruled to be contrary to Article 8 of the Convention.

I. Individual measures

1. Payment of just satisfaction

The Court awarded the applicant just satisfaction of €11,000. The principal sum was paid to the applicant on 20 April 2011, and the default interest on 6 June 2011.

2. Other measures

The order of 27 August 2002 whereby the Minister of the Interior ordered Mr Bousarra’s expulsion was revoked by an order of 9 May 2011.

The Consulate General of France with territorial competence in Morocco sent notification of this revocation order to the applicant on 9 June 2011. The applicant's lawyer informed the consular authorities by letter of 24 June that his client's address had changed. Another notification was subsequently sent to the applicant's new address.

II. General measures

1. Dissemination

The Court's decision has been brought to the attention of the office of the Ministry of the Interior responsible for expulsion proceedings.

2. Other general measures

The government considers that this decision does not require any other general measures, considering, on the one hand, the very particular nature of the facts which led to the finding of a violation, and, on the other hand, the changes to domestic legislation since the facts which led to the finding of a violation. Law No. 2003-1119 of 26 November 2003, as the Court itself also noted (§52), in practice prohibits the imposition of an expulsion measure on a foreigner lawfully resident in France for more than 20 years.

The government considers that the judgment has been executed.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)20930

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

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”)31,

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

Case name (App. No.)

Judgment of

Final on

Brusco (1466/07)

14/10/2010

14/01/2011

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)209

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

Brusco against France (Application No. 1466/07)
Judgment of 14 October 2010, final on 14 January 2011

Action report by the French government

The case concerns the right to remain silent and not assist in one’s own incrimination.

The applicant, suspected of involvement in an assault on a man by two hooded individuals in the underground car park of a Parisian residential block, was placed in custody in the context of a request for evidence on commission. In accordance with Article 153 of the Code of Criminal Procedure applicable to the facts of the case, while being examined as a witness, he was asked to swear an oath. At the end of his custody, ordered in accordance with the provisions of Article 154 of the Code, he was placed under investigation on the charge of abetting an attempted murder. By a decision which became final in 2006, he was sentenced to five years of imprisonment, with one year suspended, for having “abetted the offence of deliberate violence causing more than eight days’ total incapacity for work, which L.E. and F.G. committed in collusion, with premeditation and with the use of a weapon, by giving the culprits instructions to commit the offence, in this instance by asking them to beat up and put pressure on a man whose identifying features he supplied”.

The European Court found that when placed in custody and obliged to swear an oath to tell the truth, the applicant was on a criminal charge and therefore enjoyed the right not to assist in his own incrimination and to remain silent. It concluded that paragraphs 1 and 3 of Article 6 of the Convention had been infringed.

I. Individual measures

1. Payment of just satisfaction

The Court awarded the applicant just satisfaction of 12 000 € in compensation for his non-pecuniary damage and in respect of costs and expenses. The principal amount was paid to the applicant on 2 December 2010.

2. Any other measures

In its judgment, the Court dismissed the claims submitted by the applicant, who requested the reimbursement of wages not received through being detained and under court supervision. In fact it considered that the sole acceptable basis for the award of just satisfaction lay in the violation of Article 6, paragraphs 1 and 3 of the Convention and held that there was no link between the violation found and the alleged pecuniary damage. The government recalls moreover that Articles 626-1 et seq. of the Code of Criminal Procedure allow review of a criminal judgment to be requested after the delivery of a European Court of Human Rights judgment. The government is of the opinion that no other individual measure is required in this case.

II General measures

1. Dissemination

It should be noted that the French authorities make a practice of publishing the judgments of the European Court and circulate them to the authorities concerned. This judgment was accordingly published in the Observatoire du droit européen of the Court of Cassation (October 2010, No. 34).

2. Other general measures

The Court found a violation of Article 6, paragraphs 1 and 3 of the Convention regarding the applicant’s right not to assist in his own incrimination and to remain silent (paragraph 3 of the operative part of the judgment).

As it observed (paragraphs 29 and 53), the various laws amending French criminal procedure have brought about radical change in the conditions under which a witness may be examined. Today, the status of witness examined under oath, and that of person in police custody, who never testifies under oath in the case concerning him or her, are clearly distinct and even incompatible (Articles 153 and 154 of the Code of Criminal Procedure).

It may be further mentioned that the law of 14 April 2011 firstly provides that a person placed in custody shall be informed forthwith that he or she enjoys the right to make statements, to answer the questions asked or to remain silent and, secondly, has radically altered the conditions of intervention by the lawyer during custody (Articles 63 et seq. Code of Criminal Procedure), the lawyer being able to attend the hearings and cross-examinations of the person in custody. It is recalled in addition that, since the law of 15 June 2000, the person may, as soon as custody commences, ask to confer with a lawyer.

Consequently, the general measures needed to prevent a similar violation of the Convention from occurring have been taken, and the execution of this judgment calls for no other general measure.

The Government considers that this judgment has been executed.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21032

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

(Application No. 73316/01, judgment of 26/07/2005, final on 26/10/2005)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the lack of specific and effective protection by French criminal law of the applicant against the “servitude” in which the applicant was held (violation of Article 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 judgment;

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

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment on terms accepted by the applicant (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;

Noting that an application concerning similar complaints was transmitted by the Court to the French government on 19 January 2011 (C.N. and V. against France, No. 67724/09), and without anticipating the findings at which the Court might arrive in this connection;

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

      DECIDES to close the examination of this case.

      Appendix to Resolution CM/ResDH(2011)210

Information on the measures to comply with the judgment in the case of
Siliadin against France

      Introductory case summary

This case concerns the lack of specific and effective protection for the applicant against the “servitude” in which she was held (violation of Article 4 of the Convention).

The applicant, a Togolese national who was a minor and in an irregular situation at the material time, worked for several years from 1994 onwards as an unpaid servant for a couple who made her work seven days a week and had confiscated her passport. The European Court held that Article 4 of the Convention gave rise to positive obligations for states to adopt and effectively implement criminal-law provisions making the practices condemned by this Article a punishable offence. In the present case, the Court found that the applicant, subjected to treatment contrary to Article 4 and held in servitude, could not have the perpetrators of the acts convicted under criminal law (paragraph 145). Thus the criminal-law provisions then in force did not afford the applicant, a minor, specific and effective protection against the acts of which she was a victim. The Court noted that changes had occurred in the legislation, but these were subsequent to the facts and thus not applicable to the applicant’s situation.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

25 196,69 EUR

25 196,69 EUR

Paid on 27/09/2006

b) Individual measures

Under civil law, the domestic courts granted the applicant the sums owed to her in respect of unpaid wages plus an indemnity, and also 15 245 euro in compensation for the “significant psychological trauma” which she had suffered. Under criminal law, the decision acquitting the persons who had held the applicant in “servitude” has the status of res judicata. The applicant made no other request. Consequently, no other individual measure was considered necessary.

II. General measures

As the Court noted in its judgment, Articles 225-13 and 225-14 of the Penal Code (working and living conditions contrary to human dignity) were amended after the events of the Siliadin case by the law of 18 March 2003. The relevant offences are now defined as “obtaining from a person whose vulnerability or state of dependence are obvious or known to the offender the performance of services without payment or for one which clearly bears no relation to the amount of work performed” (Article 225-13) and “subjecting a person, whose vulnerability or dependence is obvious or known to the offender, to working or living conditions incompatible with human dignity…” (Article 225-14). To establish these offences, knowledge of the person’s vulnerability or dependence replaces the criterion of “abuse” of the person’s state of weakness or dependence used in the texts applicable at the material time. The French authorities therefore emphasise that to make a conviction possible it suffices that the state of weakness could not have been unknown to the culprit, which is easier to prove. Moreover, this law instituted a presumption of vulnerability for minors (Article 225-15-1 of the Penal Code) or for persons against whom the offences are committed on arrival in the national territory. Besides, the law of 2003 provided a new aggravating circumstance, the victim’s minority (whereas according to the letter of the former provisions, there was only one aggravating circumstance: plurality of victims).

The authorities also draw attention to the heavier penalties under the new law: the penalties provided, which were 2 years in prison and 500 000 francs (76,225 euro) fine, have been increased to 5 years in prison and 150 000 euro fine, or 7 years in prison and 200 000 euro fine where the offences defined in Articles 225-13 and 225-14 are committed against a minor or a number of persons.

In addition, the law of 20 November 2007 defined a new criminal offence of trafficking in human beings. Under the terms of Article 225-4-1, “Trafficking in human beings is the offence, committed in exchange for remuneration or for any other advantage or promised remuneration or advantage, of recruiting, transporting, transferring, accommodating or receiving a person in order to place him or her at one’s own or a third party’s disposal, even where that party is unidentified, in order to allow the offences of procuring, sexual assault, exploiting destitution, or living and working conditions contrary to human dignity to be committed against the person, or to compel that person to commit any crime or offence. Trafficking in human beings is punishable by seven years of imprisonment and a fine of 150 000 euro.” Article 225-4-2 provides that this offence “is punishable by ten years' imprisonment and a fine of 1 500 000 euro where it is committed against a minor”, for instance. The United Nations Human Rights Committee, in the “Positive aspects” part of its report of 22 July 2008 (CCPR/C/FRA/CO/4) moreover “[took] note that France has defined a new criminal offence of trafficking in persons for purposes of sexual exploitation or by imposing living or working conditions inconsistent with human dignity. The State party convicted 130 offenders under this statute in the first four years following its creation.”

The French authorities state that these provisions, interpreted by the courts in the light of the Convention and of this judgment, allow the criminal conviction of persons committing acts similar to those inflicted on Ms Siliadin, thus avoiding similar violations of Article 4.

Accordingly, steps were taken to make the case of Siliadin known, in particular to the courts. The judgment was published on the Legifrance public website and sent out to all national courts via the website of the Department of European and International Affairs. The judgment was also disseminated by the Observatoire de droit européen of the Court of Cassation on its intranet site (accessible to all courts), in its bulletin of June-July-August 2007; it was also posted on 30 September 2007 by the Ministry of Justice on its own intranet site (accessible to all courts). Finally, the judgment was published with commentary in legal journals.

After the decision taken by the Committee of Ministers to conclude the examination of this case at the 1078th meeting (DH) (March 2010), the Comité Contre l’Esclavage Moderne (a non-governmental organisation) submitted a 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 and of the terms of friendly settlements. This communication stated that insufficient penalisation by the courts of the exploitation of others resulted from the implementation of the above-mentioned texts, and referred to an opinion on trafficking in and exploitation of human beings in France, adopted on 18 December 2009 by the Commission nationale consultative sur les droits de l’homme (a national human rights institution).

The French authorities considered that this communication did not discredit their conclusion that measures had been adopted sufficing to guard against similar violations to that found in Ms Siliadin’s case, which was due to the fact that the persons who had kept her in servitude while a minor had not received a criminal conviction.

They stress that the texts implemented in the exemplary precedents cited by the Comité Contre l’Esclavage Moderne pre-date the legislative reforms described above. They also draw attention, inter alia, to a recent Court of Cassation judgment relating to the application of Articles 225-13 and 225-14 of the Penal Code as amended by the law of 18 March 2003, upholding the criminal conviction of a person charged in a case of domestic slavery (judgment no. 3662 of 15 June 2010).

The authorities also recall that on 9 January 2008, France deposited the instrument of ratification of the Council of Europe Convention on Action against Trafficking in Human Beings. This Convention is the first international instrument with the object of safeguarding and upholding the fundamental rights of victims of trafficking in human beings. The Convention took effect in respect of France on 1 March 2008.

In addition, the authorities continue their efforts as regards the fight against trafficking in and exploitation of human beings, and for the protection of victims, in the framework of their co-operation with the Group of Experts on Action against Trafficking in Human Beings (GRETA), responsible for ensuring the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings. These efforts will also be continued in the context of the authorities’ co-operation with the special rapporteurs and the treaty committees dealing with the matter in the United Nations framework.

III. Conclusions of the respondent state

The government considers that the individual 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 the general measures will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21133

Execution of the judgments of the European Court of Human Rights
Mouisel and Henaf against France

(Application No. 67263/01, judgment of 14 November 2002, final on 21 May 2003;
Application No. 65436/01, judgment of 27 November 2003, final on 27 February 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 inhuman and /or degrading treatment of sick prisoners in 2000-2001 which arose, in the Mouisel case, from the fact that the applicant had been kept in detention despite his state of health and, in both cases, from the applicants’ subjection to disproportionate security measures (violations of Article 3);

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

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

Having satisfied itself that, in the Mouisel case, the respondent state paid the applicant the just satisfaction provided in the judgment,

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded 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;

Recalling that on 15 October 2004 (Mouisel case) and 26 October 2005 (Henaf case), on the basis of the measures presented at these respective dates by the French authorities, the Committee of Ministers decided to end its supervision of execution of these two cases;

      DECLARES, according to its above-mentioned decisions of 15 October 2004 and 26 October 2005, that it has exercised its functions under Article 46, paragraph 2, of the Convention in the cases of Mouisel and Henaf and

      DECIDES to close the examination of these cases.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21234

Execution of the judgments of the European Court of Human Rights
Krombach and Mariani against France

(Application No. 29731/96, judgment of 13/02/2001, final on 13/05/2001;
Application No. 43640/98, judgment of 31/03/2005, final on 01/07/2005)

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 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 first the impossibility of being represented by a lawyer in Assizes Court proceedings in absentia (violation of Article 6, paragraphs 1 and 3 c) in Krombach, and violation of Article paragraphs 1 and 3 c), d) and e) in Mariani) and, secondly, the impossibility of appeal on points of law following proceedings in absentia (violation of Article 2 of Protocol No. 7 in both cases) (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 satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)212

Information on the measures taken to comply with the judgments in the cases of
Krombach against France and Mariani against France

      Introductory case summary

These cases concerne the impossibility for the applicants to be represented by a lawyer in absentia proceedings in before assize courts, according to the letter of Article 630 of the Code of Criminal Procedure in force at the material time. In the Krombach case, the applicant had clearly signified his wish not to attend the assize court hearing and intended to be defended by his lawyers, who were nevertheless forbidden to speak at the hearing (violation of Article 6§§1 and 3 c)). In the Mariani case, the applicant had not refused to attend but was materially incapable of appearing because of the sentence which he was serving at the time in Italy (violation of Article 6§§1 and 3 c), d) and e)).

These cases also concerned the impossibility for the applicants, under the terms of Article 636 of the Code of Criminal Procedure in force at the material time, to appeal on points of law following their trial in absentia (violation of Article 2 of Protocol No. 7), which made it impossible for them to ask the Court of cassation to review the refusal of the Assizes Court to authorise their lawyers to plead their case (§100 Krombach judgment, cited at § 45 Mariani judgment).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and number of application

Pecuniary damage

Non-pecuniary damage

    Costs and expenses

Total

Krombach (29731/96)

-

-

100 000 FRF

100 000 FRF

                      Paid on 01.03.2002

Mariani (43640/98)

-

-

1 500 EUR

1 500 EUR

                      Paid on 04.01.2006

b) Individual measures

The two applicants claimed to have incurred pecuniary damage owing to the violations undergone, but the Court dismissed their claims in that regard for want of a causal link between the alleged damage and the violations found. As to their non-pecuniary damage, the Court deemed it to be adequately redressed by its findings of violations. Furthermore, the applicants had the opportunity to request the review of the proceedings against them under Articles 626-1 et seq. of the Code of Criminal Procedure. Consequently, no further individual measure was considered necessary.

      II. General measures

Articles 630 and 636 of the Code of Criminal Procedure, in force at the material time, were annulled by Law No. 2004-204 of 9 March 2004 “for the adaptation of justice to trends in crime”. More generally, the “in absentia” procedure was replaced the procedure of “criminal default” (Article 379-2 et seq. of the Code of Criminal Procedure).

The Krombach and Mariani judgments were moreover published on the Légifrance public website and circulated (via the website of the Department of European and International Affairs) to all the national courts which directly apply the European Convention of Human Rights as interpreted by the Court. The Krombach judgment has also been the subject of numerous comments in specialist journals and has been presented at seminars (in particular the colloquy on “Trial in absentia (criminal default) in Europe” organised at the Cour de cassation on 13 May 2005).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21335

Execution of the judgment of the European Court of Human Rights
Haase against Germany

(Application No. 11057/02, judgment of 8 April 2004, final on 8 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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns disproportionate interference with the applicants’ right to respect for their family life due to the Münster District Court’s decision of 17 December 2001 according to which the applicants’ parental rights were temporarily withdrawn in respect of seven of their children (violation of Article 8) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)213

Information about the measures to comply with the judgment in the case of
Haase against Germany

      Introductory case summary

The case concerns disproportionate interference with the applicants’ right to respect for their family life due to the Münster District Court’s decision of 17 December 2001 according to which the applicants’ parental rights were temporarily withdrawn in respect of seven of their children (violation of Article 8).

In 2001 the applicants applied for family aid and, in order to receive it, agreed to a psychological assessment of their family situation. On 17 December 2001 an expert reported that the children’s normal development was in jeopardy, that their parents were often unreasonably harsh with them and had beaten them and that all contact between parents and children should be severed. The same day, without hearing either the parents or the children, the Münster District Court issued an interim injunction by which the applicants were ordered to hand over their seven children living with them. On 18 December 2001 the District Court prohibited all contact between the applicants and the children. The same day, the children were taken from their schools, a nursery and from home and were placed in three different, unidentified foster homes. The seven-day-old baby was taken directly from hospital and has, since that time, been living with a foster family.

On 1 March 2002 the Hamm Court of Appeal dismissed the applicants’ appeal. On 21 June 2002 the Federal Constitutional Court set aside the decisions of 17 December 2001 and 1 March 2002 finding that there were serious doubts as to whether the courts had respected the importance of parental rights and whether they had sufficiently taken into account the principle of proportionality (§ 30 of the judgment). On 6 March 2003, in a decision on the merits, the district court withdrew the applicants’ parental rights over the seven children and prohibited access to them until June 2004. This decision was largely upheld by the Court of Appeal in 2004. The court also prohibited Ms Haase from contacting three of her four elder children (in the custody of her first husband) before the end of 2004 and her eldest son before he reached the age of majority. Another child was born in 2003 and lives with the applicants.

The European Court underlined the procedural shortcomings of the interim order of 17 December 2001 as well as the methods used to implement it. It noted in particular that the unjustified failure to allow the applicants to participate in the decision-making process, the immediate placement of the children in undisclosed foster-homes, the prohibition of all contact between parents and children and the seizure of an infant shortly after its birth were disproportionate (§§ 100-101 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

10 000 EUR

35 000 EUR

6 645 EUR

51 645 EUR

Paid on 13/09/2004

b) Individual measures

Following the European Court’s judgment, the applicants turned anew to the Constitutional Court complaining of the violation of their right to a fair trial. On 29 September 2005, the Constitutional Court dismissed their complaint as ill-founded. It stated that the national courts had duly respected the principle of proportionality and had correctly given priority to the children's best interests when deciding to separate them from their parents.
Subsequently, the applicants lodged a fresh application with the European Court (34499/04). They complained about withdrawal of their parental rights, the separation of the children from each other and from the applicants and about restriction of the access to their children, as well as about absence of any measure to reunite the family.

On 12 February 2008 the European Court declared the complaint inadmissible. It observed that the actions taken by the authorities had been in accordance with the law and had been designed to protect the best interests of the children. Furthermore, the national courts had duly justified the reasons for restriction of access of parents to their children, the applicants had been properly involved in the decision-making process in the main proceedings and their interests had been protected. The European Court was satisfied that the procedural requirements of Article 8 had been met.

As regards the right of access to the children, since 2004 the applicants have been exercising their right to access to their children. It appears from the information available, that the obstacles to the establishment of contacts between the applicants and their children seem to be diminishing gradually, thanks to the full cooperation of the German authorities.

As to the applicants’ parental rights: In 2004 the Court of Appeal largely upheld the first-instance decision of 2003 withdrawing the applicants´ parental rights. The applicants unsuccessfully challenged these decisions before the Federal Constitutional Court as well as before the European Court through a new application (see above). Moreover, two children have been living with the applicants since 2005 and the parental rights of the applicants in respect of these children were restored by the Munster District Court in 2006. Furthermore, the applicants receive psychological and material assistance provided by the authorities with a view to preparing them to welcome other children if their parental rights were to be restored.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The European Court’s judgment was sent out to the authorities concerned, namely the judicial authorities in North-Rhine-Westphalia and the Federal Constitutional Court. It was published in Neue Juristische Wochenschrift (NJW 2004, pp. 3401-3407) and in Europäische Grundrechte Zeitschrift (EuGRZ 2004, pp. 715-723).
All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Menschenrechte, EGMR) which provides a direct link to the European Court’s website for judgments in German (www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/).

III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21436

Execution of the decision of the European Court of Human Rights
Sakewitz against Germany

(Application No. 21369/07, decision of 12/04/2011)

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly-settlement were executed by the respondent state,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close its examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21537

Execution of the judgment of the European Court of Human Rights
Böhmer against Germany

(Application No. 37568/97, judgment of 3 October 2002, final on 21 May 2003)

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

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

Recalling that the violation of the Convention found by the Court in this case concerned the unfairness of a trial due to a failure to observe the presumption of innocence (violation of Article 6, paragraphs 1 and 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 in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)215

Information about the measures to comply with the judgment in the case of
Böhmer against Germany

      Introductory case summary

The case concerns a decision of the Hamburg Court of Appeal of 16 October 1996 to revoke the suspension of a two-year prison sentence pronounced against the applicant on 14 June 1991. The European Court considered that the Court of Appeal had breached the presumption of the applicant's innocence and thus his right to a fair trial in that, in the reasons of the decision to revoke the suspension, it had gone into an in-depth analysis of the applicant's guilt with regard to other proceedings still pending in order to conclude that the applicant had committed a criminal offence during the probationary period (violation of Article 6§§1 and 2).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The applicant made no request for just satisfaction.

b) Individual measures

On 21 October 2003, the Hamburg Public Prosecutor’s Office, referring to the judgment of the European Court, ordered that the prison sentence should not be enforced, as the Court of Appeal’s decision confirming the revocation of the suspension had violated the Convention. It held that enforcement would be illegal in view of the violation found by the European Court. The applicant was informed accordingly and he has not complained about any other potential consequence of the way the matter was resolved. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The judgment of the European Court was sent out to competent German courts and published in the Neue Juristische Wochenschrift ((NJW), 2004, Volume 1-2, p. 43-45).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21638

Execution of the judgment of the European Court of Human Rights
Mooren against Germany

(Application No. 11364/03, judgment of 9 July 2009, Grand Chamber)

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

Having regard to the final judgment transmitted by the Court to the Committee;

Recalling that the violations of the Convention found by the Court in this case concern the lack of a speedy review of the lawfulness of the applicant's detention, as well as the violation of the principle of equality of arms on account of the refusal to grant the applicant's counsel access to the case-file in proceedings for review of the lawfulness of his detention (two violations of Articles 5, paragraph 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 judgment;

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)216

Information about the measures to comply with the judgment in the case of
Mooren against Germany

      Introductory case summary

The case concerns the failure to review promptly the lawfulness of the applicant’s detention on remand (violation of Article 5§4).

The applicant was arrested on 25 July 2002 on suspicion of tax evasion and remanded in custody until his release on 7 November 2002. On 9 March 2005 he was convicted of tax evasion and sentenced to a total of one year and eight months’ imprisonment suspended on probation.

The European Court noted in particular that the decision of 14 October 2002 of the Düsseldorf Court of Appeal to remit the case to the District Court instead of taking its own decision on the merits had caused unjustified delay in the judicial review proceedings.

The case also concerns refusal to grant the applicant’s lawyer access to the case file in the proceedings - violation of the principle of equality of arms (violation Article 5§4). The applicant’s lawyer was authorised to consult the case file only on 20 November 2002, after the applicant’s release.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3 000 EUR

5 650 EUR

8 650 EUR

Paid on 7/10/2009

b) Individual measures

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

      II. General measures

1) Excessive length of appellate proceedings:

The government submitted that the existing law clearly requires appeal courts to take their own decision in cases in which they find an appeal well-founded (Article 309 (2) of the Code of Criminal Procedure). In the present case, the decision of the Düsseldorf Court of Appeal to remit the case to the District Court was not compatible with the relevant procedural law; thus the violation constituted an isolated incident resulting from the particular circumstances of the case.

2) Legislative amendments concerning the denial of access to the case-file:

Article 147(2) and (7) have been amended by the Act of 29 July 2009 (Federal Law Gazette I, p. 2274, Article 1 No. 10; entry into force on 1 January 2010) to the effect that information that is essential for evaluating the lawfulness of detention of an accused shall be made available to him or to his defence counsel in an appropriate way. According to this provision, as a rule, this information is made available by granting the defence counsel access to the files.

3) Publication and dissemination:

The European Court’s judgment was sent out to the courts concerned. Furthermore, a German translation of the judgment was sent to the ministries of justice of all Länder for notification within their area of responsibility.

Moreover, it will be included in the Federal Ministry of Justice’s Report on the Case-Law of the European Court of Human Rights and on the Execution of its Judgments and Decisions in Cases against the Federal Republic of Germany in 2009. This report is widely disseminated and is published on the Federal Ministry of Justice website (www.bmj.de under the heading “Themen I Menschenrechte I EGMR I Rechtsprechung des EGMR”).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21739

Execution of the judgments of the European Court of Human Rights
Azas, Athanasiou and others, Biozokat A.E., Efstathiou and Michailidis and Cie Motel Amerika, Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E., Ouzounoglou and Zacharakis
against Greece

(See details in Appendix)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the applicants' right to the peaceful enjoyment of their possessions in the context of land expropriation proceedings (violations 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 judgments;

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

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)217

Information on the measures taken to comply with the judgments in the cases of Azas, Athanasiou and others, Biozokat A.E., Efstathiou and Michailidis and Cie Motel Amerika, Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E., Ouzounoglou and Zacharakis against Greece

      Introductory case summary

The cases concern various violations of the applicants' right to the peaceful enjoyment of their possessions in the context of land expropriation proceedings.

In particular, the European Court identified the following shortcomings:

a) lack of a procedure which could include an overall assessment of the consequences of an expropriation (cases of Azas, Biozokat A.E., Efstathiou and Michaïlidis and Cie Motel Amerika, Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E.);

b) although, in conformity with previous case-law of the Court (cases Tsomtsos and Katikaridis), the presumption that the benefit deriving from road improvements amounted to sufficient compensation for the expropriation of adjacent property was no longer irrebuttable; there had been no significant improvement in the system for compensating landowners in such cases, due to multiplication of proceedings in order to obtain full compensation (cases of Azas, Biozokat A.E., Efstathiou and Michaïlidis and Cie Motel Amerika, Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E.);

c) no special compensation was awarded in respect of the depreciation in value of the unexpropriated portion of the property resulting from the works carried out (cases of Athanasiou and others and Ouzounoglou);

d) failure to reassess the compensation award to take into account the depreciation caused by the lengthy gap between the provisional assessment and the final assessment (Zacharakis case);

e) limitations regarding the amount to be reimbursed for legal costs (Azas case) (violations of Article 1 of Protocol No. 1).

      I. Payments of just satisfaction and individual measures

    a. Details of just satisfaction

Name and application number

Judgment of

Final on

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Azas (50824/99)

19/09/2002

21/05/2003

-

20 000 EUR

20 000 EUR

40 000EUR

Paid on 11/08/2003

Athanasiou and others (2531/02)

09/02/2006

09/05/2006

181 300 EUR

 

2 289 EUR

183 589 EUR

Paid on 16/05/2006

Biozokat A.E. (61582/00)

09/10/2003

09/01/2004

-

-

-

 

Efstathiou and Michailidis and Cie Motel Amerika (55794/00)

10/07/2003

10/10/2003

20 000 EUR

   

20 000 EUR

Paid on 30/01/2004

Interoliva A.B.E.E.
(58642/00)

10/07/2003

10/10/2003

-

-

-

 

Konstantopoulos A.E. and others (58634/00)

10/07/2003

10/10/2003

-

-

-

 

Organochimika Lipasmata Makedonias A.E. (73836/01)

18/01/2005

18/04/2005

10 000 EUR

 

587 EUR

10 587 EUR

Paid on 06/07/2005

Ouzounoglou (32730/03)

24/11/2005

24/02/2006

       

Zacharakis (17305/02)

13/07/2006

11/12/2006

40 000 EUR

 

3 000 EUR

43 000 EUR

Paid on 23/03/2007

The just satisfaction was paid in conditions apparently accepted by the applicants.

b) Individual measures

The European Court awarded just satisfaction to the applicants who claimed it. In the cases Biozokat, Interoliva A.B.E.E., Konstantopoulos A.E. and others and Ouzounoglou, the European Court considered that it was not necessary to award just satisfaction in respect of pecuniary damages, as the applicants did not submit, or did not duly submit a relevant claim

The proceedings initiated by some of the applicants in the Azas case against the Thessaloniki Court of Appeal's judgment 362/2004, awarding the applicants the sum of 457 435 euros with interest, were closed by the Court of Cassation's judgment 54/2006 rejecting the appeal as inadmissible. In the case of Athanasiou and others, the European Court awarded the applicants just satisfaction covering their pecuniary damage. In addition, three of the applicants have been awarded compensation by domestic courts for the fact that they can no longer build on the unexpropriated part of the land following its division.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

Extensive legislative changes have been adopted. The case-law of the Court of Cassation is now in line with the Court's requirements. In particular:

1) Reform of the law on expropriation: A new Code of Expropriation was adopted (Law 2882/2001, amended by Law 2985/2002 and by Article 33 of Law No. 2971/2001) following the present judgments, providing strict deadlines in proceedings and the possibility of additional compensation in cases of delay. The new Code also provides that the presumption that the benefit deriving from road improvements amounted to sufficient compensation for the expropriation of adjacent property was no longer irrebuttable. Moreover, legal costs incurred in expropriation proceedings now fall under the state's responsibility and are no longer deemed to be part of compensation for expropriation.

2) Development in domestic case-law on expropriation: The Court of Cassation, in several judgments from 2004 to date, has aligned itself with the European Court's findings (since a decision of the Court of Cassation No. 10/2004 that now constitutes standard case-law, cf decisions Nos.781/2010, 591/2009):
(i) regarding the European Court's requirement of an overall assessment of the consequences of an expropriation, one court is now competent to rule, in the same proceedings, on the following matters:

    - the overall amount of compensation to be awarded for the value of the expropriated land, (cf. Court of Cassation, Plenary Session No 10/2004, as well as decisions Nos1060/2008, 627/2007, 641/2004);
    - the award of compensation for the depreciation of unexpropriated land (cf. Court of Cassation, plenary session No 31/2005, as well as Nos 431/2008, 1054/2008, 2/2007, Athens Court of Appeal Nos 2472/2005, 1333/2005);
    - the recognition of the status of the owner;
    - the question as to whether or not the landowner of property adjacent to a new road benefits from its construction;
    - the amount to be awarded for legal costs and expenses. These may be estimated at up to 4% of the compensation awarded for the expropriation and are no longer restricted to a fixed amount.

(ii) The prior jurisprudence of the Court of Cassation, according to which landowners were not awarded special compensation for the depreciation of the value of unexpropriated property resulting from the works, has been totally abandoned. Courts now award full compensation for this aspect, even if the unexpropriated part is very small (cf. Court of Cassation decision No. 31/2005 and subsequently standard case-law, cf. e.g. Court of Cassation decisions Nos 389/2009, 985/2009, 1425/2009, 1681/2009).
(iii) Amended Article 13§1 of Law 2971/2001 provides that "if the court hearing for the final award of compensation takes place more than a year after the hearing on the provisional award, account is taken when awarding compensation of the value of the expropriated land at the time when the hearing for the final award takes place". This provision is endorsed by constant jurisprudence, as well as the Court's findings (Court of Cassation Nos 721/2009, 997/2009).

3) Publication and dissemination: The European Court’s judgments, translated into Greek, have been sent by the Ministry of justice to the competent judicial authorities and are available on the internet site of the Legal Council of the State (www.nsk.gr).

4) Recent relevant case-law of the European Court: In its recent decision Zizitis against Greece (No. 52283/08, of 04/10/2011), the Court rejected the application, which was introduced by a number of applicants who were the same as the applicants in the Azas case, as inadmissible in accordance with Article 35 par. 2b of the Convention (application substantially the same as a matter that has already been examined by the Court and contains no relevant new information). In particular, the Court noted that in the Azas case it had found a violation of Article 1 of Protocol No. 1 on the following grounds: (1) the presumption that the profit for the owners of expropriated properties adjacent to a road constructed amounted to sufficient compensation for the expropriation, (2) the multiplication of procedures necessary to receive compensation that corresponds to a fair property value and (3) limitations imposed on reimbursement of judicial costs. The Court subsequently considered that the Court of Cassation, by its judgment No. 10-11/2004, rendered in a different case than that of the applicants, complied with these three aspects identified in the Azas case.

      III. Conclusions of the respondent state

The government considers that no individual measures are required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations to those found in this specific group of cases and that, in this respect, Greece has complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21840

Execution of the judgment of the European Court of Human Rights
Ouranio Toxo and others against Greece

(Application No. 74989/01, judgment of 20 October 2005, final on 20 January 2006)

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

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

Recalling that the violations of the Convention found by the Court in this case concern the applicants’ freedom of association on account of the acts and omissions of the national authorities in protecting the applicant party from incidents against it (violation of Article 11 of the Convention) as well as the excessive length of criminal proceedings combined with civil action for damages lodged by the applicants (violation of Article 6, paragraph 1, of the Convention) (see details in Appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)218

Information about the measures to comply with the judgment in the case of
Ouranio Toxo and others against Greece

Introductory case summary

The case concerns the violation of the right to freedom of association of the applicants (a lawfully constituted political party and 2 members of its political secretariat) by the acts and omissions of the national authorities in protecting the applicant party from incidents against it by protestors from the local population, which resulted in an attack and damage to the party premises.
In September 1995 the police removed a sign with the name of the party in Macedonian, which also made ambiguous connotations, following an order of the public prosecutor of Florina, on grounds of public order. The replacement of the sign by the applicants was followed by a protest against them organized by the local town council and by attacks to the headquarters of the political party by a crowd of people. The police officers and afterwards the public prosecutor took no action against those involved.
The European Court noted that “the risk of causing tension within a community by using political terms in public does not suffice, by itself, to justify interference with freedom of association” (§41 of judgment). It considered that in the present case, the local authorities should have advocated a conciliatory stance, rather than to stir up confrontational attitudes. The Court also noted that the police took no preventive or protective measures during these events (claiming lack of police manpower) and that the public prosecutor did not find it necessary to initiate an investigation to determine responsibility. For these reasons, the Court found that the authorities failed in their “positive obligations inherent in the effective respect of freedom of association” (§37 of judgment) (violation of Article 11).
The case also concerns the excessive length of the criminal proceedings combined with civil action for damages lodged by the applicants (more than 7 years solely for the investigation of the case) (violation of Article 6§1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

2 000 EUR

30 000 EUR

3 245 EUR

35 245 EUR

Paid on 02/05/2006

The just satisfaction has been paid in conditions apparently accepted by the applicants.

b) Individual measures

1. Violation of Article 6: The internal proceedings in question were closed on 30 January 2003.

2. Violation of Article 11: Four members of the political party, two of which were the second and third applicants, lodged a criminal complaint as civil parties against those responsible for the incidents referred to in the judgment. The Indictment Division of the Florina Criminal Court decided to discontinue criminal proceedings against the persons named in the complaint, as it considered that there existed insufficient evidence against them. This decision was upheld at second instance, as well as by the Court of Cassation (paragraphs 17-22 of the judgment)

The general measures adopted (see general measures below), following the Court’s judgment, aim at reinforcing citizens’ safety and security, by enhanced police action, especially with regard to "targets of polical interest" such as political parties, also apply directly to the applicant political party. Thus they cover the individual measures required to ensure the effective protection of the freedom of association of the applicant political party and its members, in accordance with the Convention as interpreted by the Court in this case. It is also noted that the applicant party has not raised a similar complaint ever since.

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

      II. General measures

1. Violation of Article 11: (a) Subsequent to the facts of the case, the police reassessed their objectives and adopted a new anti-crime strategy taking into consideration recent studies, international practice and relevant Recommendations of the Committee of Ministers. Thus, a series of new decrees, orders and decisions were issued by the police between 2002 and 2006 concerning in particular visible operations of police officers, including patrols.
In particular, Order 1026/31.05.2006, issued following the judgment of the European Court, provides that, with a view to reinforcing citizens’ sense of security, sensitive targets, including those of particular political interest (political parties’ offices, local organisations etc), are under 24-hour surveillance so that any risk of aggression is avoided. Particular emphasis is placed on the need to provide immediate and effective assistance in case of riots against such targets. This order was sent out to all police headquarters on the understanding that police directors should personally supervise its implementation. It was accompanied by a letter of the Head of the Greek Police expressly mentioning that this order had been issued in compliance with the Court’s judgment, which was also appended.

(b) Wide dissemination of the European Court’s judgment took place: it was transmitted to the Ministry of Public Order, the Head of Police and the Ministry of Justice and translated and published at the site of the Legal Council of the State (www.nsk.gr). It was also sent out to all competent judicial authorities by the Court of Cassation, as well as to the competent local authorities in Florina (municipal and regional authorities, police, judges and prosecutors) accompanied by an explanatory note.

2. Violation of Article 6§1: Greece has adopted a number of legislative and other measures to accelerate proceedings before criminal courts (see Final Resolution ResDH(2005)66 on Tarighi Wageh Dashti and 7 other cases against Greece). However, additional issues in this field are highlighted in more recent judgments. The measures taken or envisaged by the Greek authorities are being supervised by the Committee of Ministers in the Vassilios Athanasiou / Manios group.

      III. Conclusions of the respondent state

The government considers that no individual measures are required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations to those found in the present cases and that, in this respect, Greece has complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)21941

Execution of the judgment of the European Court of Human Rights
Karapanagiotou and others against Greece

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”)42,

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

Case name (App. No.)

Judgment of

Final on

Karapanagiotou and others (No. 1571/08)

28 October 2010

28 January 2011

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)219

Information about the measures to comply with the judgment in the case of
Karapanagiotou and others against Greece

Case of KARAPANAGIOTOU and others v. Greece (Application No. 1571/08)
Judgment of 28 October 2010 – Final on 28 January 2011
Action report by the Greek Government

Introduction:

The above case relates to the violation of the applicants’ right to a fair trial, guaranteed under Article 6.1 of the Convention, and more particularly of the right of access to a court, on the ground that the national courts applied a special provision granting the State a preferential right in respect of the time-limit for the introduction of an application to determine the final unit amount of compensation for expropriation.

Findings of the Court:

The Court held that the State had been given preferential treatment with regard to the time-limit for the introduction of an application to determine the final unit amount of compensation for expropriation and that the applicants had been placed in a position of clear disadvantage in relation to the State.

I. Individual measures

The applicants did not submit any costs and expenses and their request in respect of pecuniary damage was dismissed by the Court on the ground that there was no causal link between the alleged violation and the alleged pecuniary damage.
Consequently, from the Government’s point of view, no individual measure is called for by the judgment.

II. General measures

1. Dissemination/publication

The judgment in question, together with a certified translation in Greek, has been submitted to the Ministry of Justice so that all the courts involved are duly informed, in accordance with Article 46.1 of the Convention. It has also been published on the website of the State Legal Council (www.nsk.gov.gr)

2. Legislative amendment

By means of a new provision (Section 12 of Law No. 3514/2006), Article 11.2 of the “Code of Procedures to which the State is Party” (regulatory decree of 26.6/10.7/1944) was amended so that the suspension of the time-limits during the court vacation period (i.e. from 1 July to 15 September each year) applies not only to the State but also to private individuals who are party to judicial proceedings against the State.
Article 11.2 of the “Code of Procedures to which the State is Party” (regulatory decree of 26.6/10.7/1944) now provides that with effect from 20 December 2006 (the date on which Section 12 of Law No. 3514/2006 entered into force) no limitation period shall run during the court vacation either for the State or for the other parties to proceedings and that any time-limit which had begun to run before the vacation period, along with the hearing of witnesses, shall be suspended.

This being said, the question of the suspension of time-limits during the court vacation period to the advantage of the State has been finally settled by legislation (see CM/ResDH(2010)16543 , the case of Platakou v. Greece) and in line with the case-law of the Court and that of the national high courts (see, among many others, judgments 12/2002 of the Court of Cassation, and 2808/2002 and 1781/2006 of the Council of State).

Given the specific and unique nature of the case in question, in which the Court found that “by declaring that the suspension of the time-limit provided for under Article 11.2 also applied to expropriated private individuals, the Court of Cassation merely stated the situation of the law on the date of its judgment, but did not draw any conclusions as to the legislation that was applicable at the time when the applicants and the State referred the matter to the Court of Appeal”, it is difficult to conceive that a similar violation could reoccur.

In view of all the foregoing, the Greek Government considers that no additional measure, whether individual or general is required and that the judgment in question has been executed.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22044

Execution of the judgment of the European Court of Human Rights
Pistolis and others against Greece

(Application No. 54594/07, judgment of 04 June 2009, final on 04 September 2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the disproportionate constraint on the applicants’ right of access to the Court of Cassation, due to its excessively formalistic approach as regards admissibility grounds (violation of Article 6, paragraph 1 of the Convention) (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 applicants the just satisfaction provided in the judgment (see details in Appendix),

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

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

      - of general measures preventing similar violations;

Specifying however that a similar group of cases (Alvanos) is currently under the supervision of the Committee of Ministers;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)220

Information about the measures to comply with the judgment in the case of
Pistolis and others against Greece

      Introductory case summary

The case concerns 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 an appeal on points of law, dismissed their appeal in 2007 on the ground that they had not specified the factual circumstances on which the court of appeal had based its judgment. This appeal was introduced against a decision of the Athens Court of Appeal, judging a suit for damages that the applicants, members of the same family, had lodged against an under-aged driver who had caused a car accident which had resulted in the death of the applicants’ 3-year-old child. The Court of Appeal had found that the child’s father was 30% liable for the accident as he had not shown the requisite diligence.
The European Court considered that 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 this case, 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 (violation of Article 6§1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

15 000 EUR jointly

3 000 EUR

18 000 EUR

Paid on 04/12/2009

b) Individual measures

The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. It is not possible, under Greek law, to have this case re-examined or re-opened, following the judgment of the European Court. Considering the nature of the violation, and the fact that the applicants’ case 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 this case, the aim of fully erasing the consequences of the violation found does not seem to prevail over the principle of legal certainty and of protection of the rights of third parties of good faith.

      II. General measures

The case presents similarities to other previous cases in the context of which the direct effect that the European Court’s case-law enjoys in Greek law, as well as the publication and the broad dissemination of the judgment to all judicial authorities were considered sufficient for the prevention of similar violations (see Final Resolution ResDH(2009)68 in Liakopoulou and others, 19/06/2009). However, similar issues in this field are highlighted in more recent judgments. The measures taken or envisaged by the Greek authorities are being examined by the Committee of Ministers in the Alvanos group.
The Court’s judgment was translated and disseminated to all competent judicial authorities and is available on the website of the Legal Council of the State (www.nsk.gr).

      III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction and that Greece has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22145

Execution of the judgment of the European Court of Human Rights
Bigaeva against Greece

(Application No. 26713/05, judgment of 28 May 2009, final on 28 August 2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the applicant's right to respect for her professional life because of the rejection of her request to sit for examinations with a view to being admitted to the Athens Bar Association (violation of article 8) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)221

Information about the measures to comply with the judgment in the case of
Bigaeva against Greece

      Introductory case summary

The case concerns the violation of the applicant's right to respect for her professional life because of the rejection in 2002 of her request to sit for examinations with a view to being admitted to the Athens Bar Association. The European Court underlined that the domestic authorities, who did not raise the issue of the applicant's nationality until the end of the process, had allowed the applicant by mistake to carry out her pupilage and left her with hope, even though she was clearly not going to be entitled to sit for the subsequent examinations. They had thus shown a lack of coherence and respect towards the applicant and her professional life (violation of Article 8).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

 

7 000 EUR

4 400 EUR

11 400 EUR

Paid on 24/11/2009

b) Individual measures
The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Regarding the conditions of access to the lawyer’s profession, the European Court considered that it was for the national authorities, which enjoy a margin of appreciation in defining the conditions of access to the lawyer’s profession, to decide on whether the Greek nationality or the nationality of a European Union member state could be a required condition for this purpose. The Court concluded that it was not its task to substitute itself for the competent national authorities’ appreciation, which decided pursuant to aArticle 3 of the Code for Lawyers not to allow the applicant to participate in the examinations organised by the Athens Bar Association, with its own. In view of a lack of arbitrariness the Court cannot question the reasons that led the national authorities to consider this choice, based on an objective and reasonable justification (§ 40)
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The Court indicated that the violation found resulted from the Bar Association's behaviour in the case (§§31, 33).
The European Court's judgment, translated into Greek, was widely disseminated, especially to the Athens Bar Association. The translation is also available on the website of the Legal Council of the State (www.nsk.gov.gr).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22246

Execution of the judgments of the European Court of Human Rights
Imre, Maglódi, Csáky and Bárkányi against Hungary

(Application No. 53129/99, 30103/02, 32768/03 and 37214/05, judgments of 02/12/2003, 09/11/2004, 28/03/2006 and 30/06/2009, final on 02/03/2004, 09/02/2005, 28/06/2006 and 30/09/2009)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the excessive length of the applicants’ privation of liberty (violations of Article 5, paragraph 3) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order 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(2011)222

Information on the measures to comply with the judgments in the cases of
Imre, Maglódi, Csáky and Bárkányi against Hungary

      Introductory case summaries

These cases concern the excessive length of the applicants' deprivation of liberty due to the lack of sufficient reasons to justify it (violations of Article 5, paragraph 3).

In the cases of Imre and Maglódi, the Court found that the periods of the applicants’ detention on remand, which lasted for two years and nine months in 1997-2000 and four years and five months in 1999-2003 respectively, were excessive. In the case of Bárkányi, the Court likewise found that the applicant’s privation of liberty for almost two years and three months (07/2005-09/2007), including fourteen months of pre-trial detention and thirteen months of house arrest, was excessive. In all three cases, the Court held that the domestic courts had prolonged the applicants' privation of liberty referring solely to the seriousness of the alleged crimes and the ensuing risk of absconding. However, the domestic courts had failed to point out any specific reasons which could have reasonably led the authorities to assume that the applicants would abscond.

In the case of Csáky, the Court noted that the principal reason for the applicant’s detention on remand in 2002-2004 was the danger of absconding and, to a lesser extent, that of collusion. The Court found that the domestic courts should have made their assessment in the light of the applicant's serious psychiatric condition and should have considered placing him in a civilian institution instead of continuing to reiterate that, given the seriousness of the charges against him, there was a risk that the applicant would abscond.

      I. Payments of just satisfaction and individual measures

a) Just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Imre 53129/99

-

3 000 EUR

-

3 000 EUR

Paid on 26/04/2004

Maglódi 30103/02

-

3 000 EUR

-

3 000 EUR

Paid on 23/03/2005

Csáky 32768/03

-

2 500 EUR

-

2 500 EUR

Paid on 06/09/2006

Bárkányi 37214/05

-

2 000 EUR

-

2 000 EUR

Paid on 10/11/2009

b) Individual measures

1) Imre case: The applicant was convicted of narcotics abuse and sentenced to nine years’ imprisonment in 2000. He was conditionally released in 2003.

2) Maglódi case: The applicant was still detained when the Court delivered its judgment. The domestic court had justified his prolonged detention, inter alia, on the ground of the severity of the crime and the fact that the applicant was under investigation for another murder. On 07/12/2005 (following the Court’s judgment), the first-instance court convicted the applicant of murder and sentenced him to life imprisonment with the possibility of parole after 20 years. In its judgment, the said court took into account the excessive length of the applicant’s detention on remand, including the period after the Court’s judgment, as a mitigating circumstance.

3) Csáky case: The applicant was released in October 2004. In June 2005, the criminal proceedings against him were stayed as he was not mentally capable of standing trial.

4) Bárkányi case: In September 2007, the applicant was found guilty of trafficking in stolen goods and sentenced to one year’s imprisonment suspended.

II. General measures

1) Legislative measures

The Hungarian authorities indicated that several measures have been taken with a view to (i) reducing the length of the detention on remand and (ii) ensuring that specific reasons are provided for decisions ordering such detention.

First, pursuant to a provision of the Code of Criminal Procedure (CCP), which entered into force on 01/05/2006, courts may order detention on remand only as a last resort while taking into account the principle of proportionality. Detention on remand may only be ordered on the grounds specified under section 129§2 of the CCP. Those grounds are as follows:

(a) the accused escaped or hid from the court, prosecutor or the investigative authority, or has attempted to escape, or during a given procedure another criminal procedure is launched against him/her for an offence punishable by imprisonment;

(b) there is a well-founded ground to presume that his/her presence may not be secured otherwise;

(c) there is a well-founded ground to presume that, if not detained on remand, the accused would frustrate, hinder or threaten the proceedings through influencing or intimidating witnesses, eliminating, forging or hiding material evidence or documents;

(d) there is a well-founded ground to presume that, if not detained on remand, the accused would accomplish the attempted or prepared offence or would commit another offence punishable by imprisonment.

Secondly, according to amendments made to the CCP, which entered into force on 01/07/2003, domestic courts must give detailed reasons for their decisions. They are also obliged to evaluate more attentively the facts on which decisions prolonging detention on remand are based.

Thirdly, pursuant to the foregoing amendments made to the CCP, the risk that an accused might abscond shall no longer be deduced from the seriousness of the alleged crime alone (Art. 129§(2)b). The Hungarian authorities have also indicated that, according to the well-established practice of the domestic courts, the risk that an accused might abscond must be established on the basis of specific evidence and not on the basis of presumptions.

2) Training and awareness

The Hungarian authorities underlined the training of judges, which took place following the Maglódi case. They indicated in this respect that this judgment was discussed at the 2005 annual meeting of the heads of criminal divisions in regional courts, courts of appeal and the Supreme Court. In particular, the attention of the heads of criminal divisions was drawn to the application of the Convention by domestic courts and to the issues concerning criminal proceedings, such as the excessive length of detention pending trial and the grounds for such detention.

During further training, judges' attention was drawn to the above mentioned provisions of the CCP and they were advised to observe them in their reasoning.

3) Publication and dissemination

The Court’s judgments were published on the website of the Ministry of Justice and Law Enforcement (www.irm.gov.hu). The Ministry of Justice and Law Enforcement has also sent judgments in the cases of Imre and Csáky to the National Judicial Council for dissemination to judges. In addition, the Court’s judgment in the case of Imre was published in the human rights quarterly Acta Humana, No. 1/2004.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22347

Execution of the judgment of the European Court of Human Rights
Kjartan Ásmundsson against Iceland

(Application No. 60669/00, judgment of 12 October 2004, final on 30 March 2005)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns discriminatory interference with the applicant’s right to respect for his property on account of the lapse of his right to a disability pension following an amendment to the legislation (violation of Article 1 of Protocol No. 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)223

Information about the measures to comply with the judgment in the case of
Kjartan Ásmundsson against Iceland

      Introductory case summary

The case concerns discriminatory interference with the applicant’s right to respect for his property.

Following an industrial accident in 1978, the applicant was assessed to be 100% disabled and incapable of continuing to work as a seaman. He was granted a disability pension. In 1992, the method of evaluating disability was changed so that disability was no longer assessed in relation to the ability to perform the same work, but rather work in general. Under the terms of the new rules, the applicant’s degree of disability was reassessed at 25%, i.e. less than the minimum threshold of 35%. Accordingly, after a transitional period of 5 years, his right to a disability pension lapsed, in 1997.

The European Court found that the new pension rules had been prompted by legitimate concerns and were based on objective criteria. However, it resulted in the applicant's being completely deprived of the disability pension which at the time constituted no less than a third of his gross monthly income and which he had received for nearly 20 years. In addition, the fact that the vast majority of persons in receipt of disability pensions continued to receive benefits as before (although for some at a reduced rate) whilst a small minority (54 persons including the applicant) had totally lost their pension entitlement could be considered as differential treatment. Against this background, the Court concluded that the applicant was made to bear an excessive and disproportionate burden (violation of Article 1 of Protocol No. 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

75 000 EUR

1 500 EUR

20 000 EUR

96 500 EUR

Paid on 18/04/2005

b) Individual measures

The European Court awarded just satisfaction compensating the loss of the applicant’s entitlement to a disability pension. It reduced the amounts claimed by the applicant, indicating that it could not award him the full amount claimed because a reasonable and proportionate decrease in his disability pension rights, having regard to the new criteria, would be in conformity with his rights under the Convention (§ 51). In particular, the Court noted that ”as an individual, the applicant was made to bear an excessive and disproportionate burden which, even having regard to the wide margin of appreciation to be enjoyed by the State in the area of social legislation, cannot be justified by the legitimate community interests relied on by the authorities. It would have been otherwise had the applicant been obliged to endure a reasonable and commensurate reduction rather than the total deprivation of his entitlements” (§ 45).

The applicant’s retirement pension became payable in July 2009. It is to be noted that the applicant made no claim before the European Court concerning any possible reduction of his retirement pension resulting from the violation found.

      II. General measures

The authorities indicated that a few people in a situation similar to that of the applicant had contacted the Ministry of Justice, which advised them to contact the office of the Attorney General had to claim compensation. The Icelandic authorities consider that the other 53 people concerned are sufficiently informed of the possibility to apply to the Attorney General for compensation, since the judgment of the European Court was published in Icelandic on the homepage of the Ministry of Justice.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22448

Execution of the judgments of the European Court of Human Rights
Four cases against Ireland

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”)49,

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

 

Case name (App. No.)

Judgment of

Final on

1

Doran (50389/99)

31/07/2003

31/10/2003

2

McMullen (42297/98)

29/07/2004

29/10/2004

3

O’Reilly and others (54725/00)

29/07/2001

29/10/2004

4

Barry (18273/04)

15/12/2005

15/03/2006

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute each of the judgments listed in the table above;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report for each case provided by the government (see appendices);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgments;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)224

Information about the measures to comply with the judgment in the case of
Four cases against Ireland

ACTION REPORT

Doran v. Ireland
McMullen v. Ireland
O’Reilly & Others v. Ireland
Barry v. Ireland

Introduction

The above cases against Ireland are currently under examination by the Committee of Ministers of the Council of Europe (CM-DH) and concern the issues of excessive length of domestic proceedings (Article 6) and the need for an effective remedy (Article 13).

Ireland has provided previous updates on measures taken with regard to Article 6(1). This Action Report provides a general overview of all steps taken.

It is clear that considerable progress has been made in reducing delays in litigation and that the situation is being kept under review. Consequently, Ireland’s view is that it is now appropriate for the Committee of Minsters to adopt a final decision concluding its supervision of the general measures regarding delays in litigation in Ireland.

The issues arising under Article 13 and the need for an effective remedy for persons alleging a delay under Article 6(1) will continue to be examined in the context of the Committee of Ministers’ supervision of the judgment in Mc Farlane.

Individual measures

All the applicants’ domestic proceedings are now closed. Ireland considers that no further individual measures are required.

General measures as regards Article 6

Steps already taken

Supreme Court:

1. Superior Court Fast Track System: The Irish Supreme Court operates a priority list system to expedite urgent cases. Cases such as Hague Convention/Child Abduction and European Arrest Warrant Act appeals, are automatically prioritised in accordance with Judicial practice directions dealing with these type of cases. In all other cases, it remains open to any party to apply to the Court for priority, once urgency or some other basis for the application can be shown. Also, exceptionally urgent matters can be heard at extremely short notice. For example the High Court delivered judgment in a particular child abduction case on 27th July 2010 (Coventry City Council v. S [2010] IEHC 303), and the Supreme Court heard and disposed of the appeal on the 30th July 2010. This system of the division of cases between an ordinary list and a priority list continues to be an effective method by which urgent cases can be given priority. On average, waiting time is reduced to about a quarter of the average in the cases where the fast track is applied.

2. Court of Appeal: The Report of the Working Group on a Court of Appeal was published in August 2009. In recognition of the importance of this issue, the establishment of a Court of Appeal is included in the Programme (published 6 March 2011) of the new coalition Government. Establishment of an interim Court of Appeal is likely to require a Constitutional referendum and work has commenced on the legislation necessary to achieve this. No decision has yet been taken as to the timing of the necessary referendum.

High Court:

3. Register of Reserved Judgments: Section 46 of the Courts and Courts Officers Act 2002 provides the establishment of a register of every reserved judgment in civil proceedings. If the judgment is not delivered within two months from the date upon which it was reserved, the President of the Court which heard the case must list the proceedings before the judge who reserved judgment at two-month intervals. That judge must specify the date on which he or she proposes to deliver the judgment. The register of reserved judgments enables the Courts Service of Ireland to remind Judges of outstanding judgments and support the Chief Justice/President of the High Court in ensuring that Judges who need it can be given time out of court to write reserved judgments.

4. Judicial Fellowships: The Judicial Fellowships which commenced in 2008 have been continued and ten fellows continue to assist High Court Judges with research and with drafting written judgments. This has had a positive impact in terms of delay generally in the High Court, particularly with regard to reserved judgments. The number of reserved judgments delivered by High Court Judges to 31 December 2009 increased by 30% over the previous 12 months period and there has been a significant reduction in the time taken for delivery of reserved judgments.

5. Civil Case Management System: The Courts Service of Ireland was established in 1999 by legislation in order “to manage the courts, support the judiciary and provide a high-quality and professional service to all the courts”. The ICT unit of the Courts Service continues to work on the development of civil case management technology with the functionality to provide the necessary management information.
The Courts Service has reviewed court processes and a pilot system for on-line filing, managing and processing undefended liquidated claims for civil debt is currently being developed which will be the basis for a feasibility study in other areas of civil case management. Such a system will enable the Courts Service to identify ageing cases and those in which no action has been taken so that they can, if appropriate, be listed before a Judge to be progressed or struck out.

6. Creation of a Specialised Court - Commercial Court: The Commercial List was set up in January 2004 and continues to contribute greatly to reducing the disposal time for cases admitted to the High Court. The case load of the Commercial List has increased by 53% in the past 12 months. Despite this, dates are immediately available in this list. The average time for completion of cases is 20 weeks from commencement.

7. ‘Call overs’: Courts often use ‘call overs’ to ensure that cases progress through the system and that settled cases are not left in the court list. The legal representatives of the parties are required to attend court to confirm that their case remains ‘live’ and inform the court if they are ready to proceed. Any case in which the parties fail to appear is struck out and can only be re-entered by order of the court. In 2009, three full court days were dedicated to this exercise at the conclusion of which 1,359 cases had been removed from the list. The same exercise was performed in 2010, with 1,400 cases being listed and 1399 being allocated dates or removed from the list.

8. Reductions in High Court Waiting Times: Measures taken to reduce waiting times in the High Court, as outlined above, continue to have a significant positive impact on the High Court’s final caseload. Some examples of the direct result of these measures are as follows:

    - Non Jury List - The non jury list deals mainly with contract disputes, debt recovery and negligence. There has been a 110% increase in the number of new actions commenced in the High Court for debt recovery for the year ending June 2010, compared to the year ending June 2008 and a 60% increase in the number of contract disputes in the same period. In the interests of the efficient deployment of Judges the President of the High Court has dispensed with the separate list for Circuit Court Appeals and transferred these cases into the non-jury list. The waiting time for this list is 4 months from the certificate of readiness.

    - Chancery List - These cases are mainly company law cases and injunctive matters. There has been a 50% increase in the number of new chancery actions commenced in the High Court for the year ending June 2010, compared to the year ending June 2008. Notwithstanding the increased case load, the waiting time for this list has been maintained at 3 months from the certificate of readiness.

    - Judicial Review - The waiting time for this list has been reduced from 4 months (as at October 2009) to 3 months (as at August 2010) and is 2 months as at January 2011. Cases taking less than 2 hours are disposed of within 5 weeks. Judicial review of in the area of asylum/immigration cases are still experiencing delay but the Courts Service of Ireland has focused resources on clearing cases in which leave has been granted and the President of the High Court continues to dedicate judicial resources to clearing the backlog.

9. Appointment of Additional Judges: A total of 8 additional judges were appointed to several courts in November 2004, three of those to the High Court. The additional judges have been deployed in reducing the waiting time for serious criminal trials, cases relating to asylum and immigration matters, applications arising from child abduction and for European Arrest Warrants. As a result, in the Central Criminal Court, the waiting time from return for trial to disposal of murder and rape cases has been brought down from 18-24 months in 2004 to 10-11 months in 2009. In May 2007 the government appointed four additional High Court Judges to assist in reducing the waiting time for trials in the High Court.

10. Court Venues: Normally the Superior Courts would sit only in Dublin, however in response to pressure on courtroom space, a practice was initiated to utilise larger, recently refurbished courthouses in regional locations. Thus, non-jury matters (e.g., civil proceedings related to debt recovery, contract disputes, allegations of negligence and misrepresentation) and judicial review cases were heard in regional courthouses. As a consequence, many cases, which otherwise would remain without a hearing date, were fixed for these venues.

The new Criminal Courts of Justice Complex was officially opened in January 2010 and has been constructed to deal specifically with criminal business of Dublin District Court, Dublin Circuit Court, Central Criminal Court, Special Criminal Court and Court of Criminal Appeal. The building has over 450 rooms including 22 courtrooms. These new state of the art facilities will significantly reduce the pressures on Dublin venues.

11. Management of backlogs:

    - Extra sittings have been arranged to deal with backlogs of Appeals from the Circuit Court in some of the regions.

    - There are ongoing amendments to court rules with a view to introducing greater efficiencies in court practice and procedure. For example, Case Progression Hearings in the Circuit Court came into operation for family law matters on 1 October 2008 (S.I. No. 358 of 2008 Circuit Court Rules ( Case Progression in Family Law Proceedings) 2008 and for civil matters from 1 January 2010 (Circuit Court Rules (Case Progression (General)) 2009 - S.I. No.539 of 2009). The purpose of case progression is to ensure that proceedings are prepared for trial in a manner which is just, expeditious and likely to minimise the costs of the proceedings, for example through recourse to ADR where appropriate, and that the time and other resources of the court are employed optimally.

    - In 2009 and 2010, special additional sittings were held in every district and county and additional District Court sittings were held in Dublin during the court’s vacation in August and September (facilitating the earlier disposal of approximately several thousand cases).

12. Mediation: Order 56A , S.I. No. 502 of 2010, Rules of the Superior Courts (Mediation and Conciliation) 2010, came into effect on 16 November 2010 and provides that a High Court judge may now adjourn legal proceedings to allow the parties engage in an Alternative Dispute Resolution Process. The Circuit Court Rules, S.I. 539 of 2009, signed into law with effect from 1st January 2010, permit a Circuit Court Judge or the County Registrar at a case progression hearing to adjourn certain civil proceedings for a period not exceeding 28 days to allow the parties to use mediation, conciliation and arbitration or any other dispute resolution process to settle or determine the proceedings issue.

Conclusions

13. Ireland is of the opinion that the issue of execution of the Court’s judgment as regards individual measures and general measures for the Article 6 violation concerning length of proceedings is properly addressed. It is our assessment that the matter is ready for closure.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22550

Execution of the decision of the European Court of Human Rights
Bogdanovs-Migalevs against Latvia

(application No. 25761/02, decision of 18/01/2011)

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly-settlement were executed by the respondent State,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close its examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22651

Execution of the judgments of the European Court of Human Rights
in 2 cases against Latvia

(see below)

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;

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

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

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

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

      DECIDES to close the examination of these cases.

Information on the judgments in 2 cases against Latvia

Case

(Application No.)

Judgment of

Final on

Closure decision

Zaicevs
(65022/01)

31/07/2007

31/10/2007

June 2009
1059th meeting

A/S Diena and Ozoliņš
(16657/03)

12/07/2007

12/10/2007

December 2008
1043rd meeting

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22752

Execution of the judgments of the European Court of Human Rights
Freimanis and Līdums, Nazarenko, Vogins, and Ž. against Latvia

(Application No. 73443/01, judgment of 9 February 2006, final on 9 May 2006,
Application No. 76843/01, judgment of 1 February 2007, final on 1 May 2007,
Application No. 3992/02, judgment of 1 February 2007, final on 1 May 2007,
Application No. 14755/03, judgment of 24 January 2008, final on 24 April 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 referred to as “the Convention” and “the Court”);

Having regard to the final 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 detention on remand of the applicants and the criminal proceedings brought against them before the domestic courts (Article 5, paragraphs 1, 3, and 4, and Article 6, paragraphs 1 and 2) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Latvia’s 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 new, similar violations;

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

      DECLARES 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 ResDH(2011)227

Information about the measures to comply with the judgments in the cases of
Freimanis and Līdums, Nazarenko, Vogins, and Ž. against Latvia

    Introductory case summary

Freimanis and Līdums: The case concerns criminal proceedings relating to the activities of the applicants, a former chairman of largest Latvian bank (Banka Baltija) and one of its directors, as well as the chairman of the board of this bank who was also an applicant in an earlier case (Lavents v. Latvia, application no. 58442/00). The Court found the following shortcomings:
- excessive length of the detention on remand between September 1998 and December 2001 (three years and more than three months) without proper grounds (violation of Article 5§3),
- lack of effective judicial supervision of the applicants' detention on remand, given the unlawfulness of the composition of the court in question and the fact that it was not impartial (violation of Article 5§4),
- excessive length of the criminal proceedings (for the first applicant almost eight years, still pending on appeal at the time of the Court’s judgment; for the second applicant about seven years and ten months) (violation of Article 6§1), and
- violation of the presumption of innocence due to the statements made by the judge in charge of their case (violation of Article 6§2).

Nazarenko: The case concerns the irregularity of the applicant's detention from 29 May to 23 August 2001, when it had not been authorised by a judicial decision (violation of Article 5§1).
Furthermore, it concerns excessive length of the applicant's detention on remand (two years and more than three months) (violation of Article 5§3).

Vogins: The case concerns excessive length of the applicant's detention on remand (one year and more than seven months) (violation of Article 5§3).

Ž.: The case concerns the overall length of detention, the insufficiency of the reasons given and the inadequacy of the proceedings in connection with the decisions on continued detention (two years and more than four months) (violation of Article 5§3).

I. Individual measures

a) Details of just satisfaction

Name and application no.

Pecuniary damage

Non-pecuniary damage

    Costs and expenses

Total

Freimanis and Līdums (73443/01)

-

-

-

-

 

Nazarenko (76843/01)

-

3 000 EUR

-

3 000 EUR

Paid on 28/06/2007

Vogins (3992/02)

-

-

-

-

 

Ž. (14755/03)

-

500 EUR

-

500 EUR

Paid on 30/05/2008

b) Individual measures

Freimanis and Līdums: The Committee of Ministers notes that it already appears from the judgment of the European Court that the incriminated proceedings were quashed by the Supreme Court in February 2003 and referred back for a fresh examination with a new bench of judges. The applicants were released on 27 January 2003 and 28 December 2001 respectively, and the Riga Regional Court delivered a new judgment in May 2005. The Court found however that the new proceedings, the fairness of which was not in doubt, had not fully rectified the violation of the presumption of innocence, thereby leading to a violation of Article 6§2 of the Convention. In the Court’s view, the finding of a violation constituted sufficient just satisfaction (cf. the Court’s decision in respect of Article 41 in the case of Lavents against Latvia and the final resolution adopted in that case). Given the Court’s findings and the circumstances of the present case, no further individual measures are necessary.

Nazarenko and Vogins: The applicants were released on 15 March 2005, having served most of their sentence. The first applicant was awarded just satisfaction in respect of moral damage by the Court, whereas the second applicant did not submit any claim to this effect.

Ž.: The applicant was convicted and is no longer in detention on remand. He was also awarded just satisfaction in respect of moral damage by the Court.

    II. General measures

These cases present similarities to those of Lavents and Jurjevs, the examination of which was closed by Resolution CM/ResDH(2009)131, in which the following measures adopted by the Latvian authorities are mentioned:

a) Violation of Article 5§1:
The relevant article of the Latvian Code of Criminal Procedure, in force at the material time, was repealed by a new law of 20 January 2005 which entered into force on 1 February 2005.

b) Violation of Article 5§3 and Article 5§4:
• Legislative measure: A new Law on Criminal Procedure entered into force on 1 October 2005, introducing the post of an investigative judge whose main function is to supervise the observance of human rights in criminal proceedings. The investigative judge decides on the application and extension of certain means of restraint (detention, house arrest, placement in an institution) as well as on complaints related to other means of restraint (e.g. restraint order, bail, conditions of police supervision). The new law also imposes several time-limits for detention on remand.
• Training and awareness-raising measures: Issues relating to human rights in detention were included in the training programme for judges and prosecutors. Moreover, a research paper concerning the recent case-law on detention issues was distributed to all participants in the training programme.

c) Violation of Article 6§1:
There does not seem to be a systemic problem of excessive length of criminal proceedings in Latvia.

d) Violation of Article 6§2:
The violation found in the proceedings in question seems to be an isolated incident in respect of which the publication and dissemination of the judgment constitute a sufficient measure to prevent new similar violations. The judgment in the Lavents case was published and disseminated to judges and prosecutors. The Latvian translation of the admissibility decision and the judgment in the case of Freimanis and Līdums was also published on the website of the Government Agent (www.mkparstavis.am.gov.lv <http://www.mkparstavis.am.gov.lv/lv/@id=98>) and in the official periodical Latvijas Vēstnesis on 14 February 2006, No. 26(3394) (www.vestnesis.lv <http://www.vestnesis.lv>).

      III. Conclusions of the respondent state

The government considers that in these circumstances, no special individual measures are called for, that the general measures reported prevent similar violations and that Latvia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22853

Execution of the judgments of the European Court of Human Rights
Simonavičius, Gečas, Norkunas and Novikas against Lithuania

(Application No. 37415/02, judgment of 27/06/2006, final on 27/09/2006,
Application No. 418/04, judgment of 17/07/2007, final on 17/10/2007,
Application No. 302/05, judgment of 20/01/2009, final on 20/04/2009,
Application No. 45756/05, judgment of 20/04/2010, final on 20/07/2010)

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

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

Recalling that the violation of the Convention found by the Court in these cases concerns the excessive length of criminal proceedings (violations of Article 6 § 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Lithuania’s 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(2011)228

Information about the measures to comply with the judgments in the cases of
Simonavičius, Gečas, Norkunas and Novikas against Lithuania

      Introductory case summary

These cases concern the excessive length of criminal proceedings (violations of Article 6§1). In the Simonavičius case, the proceedings had been pending for six years and nine months for two levels of jurisdiction when the European Court gave its judgment (1999-2006). In the Gečas case, the proceedings lasted for nearly five years and eleven months at three levels of jurisdiction (1997-2003). In the Norkunas case, the proceedings lasted for seven years and almost five months at three levels of jurisdiction (1997-2004). In the Novikas case, the proceedings lasted for seven years and two months at three levels of jurisdiction (1998-2005).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Simonavičius (37415/02)

-

2 000 EUR

1 000 EUR

3 000 EUR

Paid on 02/11/2006

Gečas (418/04)

-

900 EUR

581 EUR

1 481 EUR

Paid on 29/11/2007

Norkunas (302/05)

-

2 000 EUR

725 EUR

2 725 EUR

Paid on 12/05/2009

Novikas (45756/05)

-

1 800 EUR

1 500 EUR

3 300 EUR

Paid on 20/10/2010

b) Individual measures

In the Simonavičius case, the Supreme Court delivered its final decision in November 2006. In the Gečas, Norkunas and Novikas cases, no individual measures were required as the proceedings had already ended when the European Court issued its judgments.

      II. General measures

These cases present similarities to that of Girdauskas against Lithuania, the examination of which was closed by Resolution CM/ResDH(2007)127, following the adoption of general measures.

However, additional issues in this field are highlighted in more recent judgments of the Court. The measures taken or envisaged by the Lithuanian authorities are being supervised by the Committee of Ministers in the Šulcas group (No. 35624/04, judgment of 05/01/2010) in which the Court also found a violation of Article 13 of the Convention.

The Court’s judgments were translated into Lithuanian and placed together with explanatory notes on the website of the Ministry of Justice. Translations of the judgments were also placed on the official internet site of the National Courts´ Administration. The Government Agent provided all relevant institutions and domestic courts with the judgments and an explanatory note.

      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 Lithuania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)22954

Execution of the judgments of the European Court of Human Rights
in 5 cases against Lithuania

(see below)

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;

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

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

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

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

      DECIDES to close the examination of these cases.

Information on the judgments in 5 cases against Lithuania

Case

(Application No.)

Judgment of

Final on

Closure decision

Čiapas
(4902/02)

16/11/2006

16/02/2007

December 2008
1043rd meeting

Jucys
(5457/03)

08/01/2008

08/04/2008

March 2009
1051st meeting

Jucius and Juciuvienė
(14414/03)

25/11/2008

25/02/2009

December 2009
1072nd meeting

Vaivada
(66004/01 & 36996/02)

16/11/2006

26/03/2007

October 2007
1007th meeting

Balsytė-Lideikienė
(72596/01)

04/11/2008

04/02/2009

December 2009
1072nd meeting

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23055

Execution of the judgment of the European Court of Human Rights
Juozaitienė and Bikulčius against Lithuania

(Applications nos. 70659/01 and 74371/01, judgment of 24/04/2008, final on 24/07/2008)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the deaths of the applicants' sons due to the use of unnecessary force during the arrest of a third person and lack of an effective investigation into their deaths (substantive and procedural violations 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 in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)230

Information on the measures taken to comply with the judgment in the case of
Juozaitienė and Bikulčius against Lithuania

      Introductory case summary

This case concerns the deaths of the applicants' sons in Kaunas in July 1998 as a result of excessive use of force exercised by a police officer to effect a lawful arrest following a car-chase in which the applicants' sons were passengers (substantive violation of Article 2). The European Court considered that the action of the police officers implicated in the car-chase, in particular the erratic shooting at the car, indicated a lack of caution in the use of firearms (§ 82 of the judgment).

The case also concerns the authorities' failure to conduct an effective investigation into the deaths of the applicants' sons (procedural violation of Article 2). The European Court identified the following deficiencies in the criminal investigation and during the subsequent judicial proceedings: the investigation was only opened almost 10 months after the incident, a number of key elements of the incident were not subject to adequate assessment, the inquiry only focused on the version presented by the police, and the prosecutor discontinued the investigation against the police officer on several occasions on the ground that no evidence of any crime had been found.

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

30 000 EUR
to each applicant

-

60 000 EUR
Paid on 06/10/2008

b) Individual measures

Under Lithuanian law, the applicants could have applied for reopening of the investigation (see Article 217 of the Criminal Procedure Code). However, they did not avail themselves of this possibility. In addition, the statute of limitation makes it impossible to prosecute the responsible police officer at this stage. No further individual measure seems necessary in this case.

      II. General measures

a) Substantive violation of Article 2:

Article 228 of the new Criminal Code, which punishes acts of abuse of office, entered into force on 01/05/2003 (§ 43 of the judgment).

On 29/12/2006, the Minister of the Interior issued Order No. 1V-500 concerning training requirements for police officers. Officers have a continuing obligation to attend training both to raise their awareness of the legal provisions governing the use of physical coercion and firearms, to improve their practical skills. In addition, the Commissioner General of the Lithuanian Police issued Orders Nos. 5-V-784 of 22/12/2008 and 5-V-311 of 06/05/2009 on training programmes for general professional skills and professional tactics: officers are required, as part of their training, to analyse typical situations and specific cases in which the police had used coercive actions, including the situation which occurred in the present case.

The police were supplied with special devices to force vehicles to stop, such as electric-shock devices “TASER”. In 2000, the cartridges used by the police were changed to a less penetrating, non-ricochet type.

b) Procedural violation of Article 2:

Following the European Court’s judgment in the present case, the domestic courts changed their case-law. The Lithuanian authorities provided an example, in which the Klaipéda Regional Court directly referred to this judgment of the European Court. In particular, in its decision of 06/03/2009, the Klaipéda Regional Court concluded that it was necessary to clarify the circumstances of the case, in particular as to whether the danger had been so manifest and imminent as to justify the use of firearms, and whether the officers involved had used all the measures of last resort intended to avert such danger. Since the European Court’s case-law is directly applicable in the Lithuanian legal order, the Lithuanian authorities are confident that it will also be applied in future similar situations. In addition, the European Court’s judgment was widely disseminated to the prosecution authorities (see below).

c) Publication and dissemination:

The European Court’s judgment has been translated into Lithuanian and placed on the official website of the Ministry of Justice (http://www.tm.lt/) together with an explanatory note. Translation of the judgment was also placed on the official internet site of the National Courts´ Administration. The Government Agent sent an explanatory note on the judgment to all relevant institutions and domestic courts.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23156

Execution of the judgments of the European Court of Human Rights
Ramanauskas and Malininas against Lithuania

(Applications No. 74420/01, judgment of 5 February 2008 – Grand Chamber
Applications No. 10071/04, judgment of 1 July 2008, final on 1 October 2008)

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

Having regard to the 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 concerns the unfairness of criminal proceedings as a result of which the applicants were convicted of a crime committed upon active incitement by undercover state agents (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 the examination of these cases.

Appendix to Resolution CM/ResDH(2011)231

Information about the measures to comply with the judgments in the cases of
Ramanauskas and Malininas against Lithuania

      Introductory case summaries

These cases concern the violation of the applicants´ right to a fair hearing in that the applicants were found guilty of bribery and drug dealing in 2000 and 2003 respectively, following active incitement by undercover state agents (violations of Article 6§1).

In the case of Ramanauskas, the domestic courts found that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit the offence. The Supreme Court considered that the evidence corroborated the applicant's guilt, which he himself had acknowledged. Once his guilt had been established, the question of whether there had been any outside influence on his intention to commit the offence had become irrelevant. The Court found that the actions of the state agents had gone beyond the mere passive investigation of existing criminal activity: there was no evidence that the applicant had committed any offences before, in particular corruption-related offences. All the meetings between the applicant and the agents took place at their initiative and the applicant seemed to have been subjected to blatant pressure on their part to commit a criminal act, whereas there was no objective reason to suppose that he intended to do so. The Court further indicated that the domestic authorities and courts should have undertaken a thorough examination of whether or not the prosecuting authorities had incited the commission of a criminal act. They should have established in particular the reasons why the operation had been engaged, the extent of the police's involvement in the offence and the nature of any incitement or pressure. The applicant should have had the opportunity to state his case on each of those points and the courts should have made all necessary efforts to hear the state agents as witnesses. The Court concluded therefore that the agents' actions had had the effect of inciting the applicant to commit the offence concerned and that there was no indication that the applicant would have committed it without their intervention.

In the case of Malininas, the Court, relying on the criteria established in the Ramanauskas case, found that the actions of the state agents had gone beyond the mere passive investigation of existing criminal activity and exercised an influence such as to incite the commission of the offence. There was no evidence that the applicant had committed any drug offences before. It also appeared that the relevant evidence regarding purported suspicions about the applicant's previous conduct was not fully disclosed to him before the trial court and was therefore not tested before it in an adversarial manner. Finally, it was the state agent who took the initiative when he first approached the applicant, asking where he could acquire illegal drugs.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Ramanauskas
74420/01

30 000 EUR

30 000 EUR

Paid on 15/04/2008

Malininas
10071/04

-

-

1 710 EUR

1 710 EUR EUR

Paid on 15/12/2008

b) Individual measures

In the case of Ramanauskas, the Court noted that in January 2002, the applicant was released on probation and in July 2002, the decision prohibiting him from working in law enforcement institutions was lifted. Furthermore, his conviction was expunged in January 2003. Following the Court’s judgment, the applicant applied for reopening of the criminal proceedings at issue. By decision of 16 December 2008, the Supreme Court quashed the applicant’s conviction and discontinued the reopened criminal case.

In the Malininas case, the Court considered that the finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant. It further stressed that retrial or reopening of the case, if requested, represent in principle an appropriate way of redressing the violation (§43 of the judgment). Following the Court’s judgment, the applicant submitted a request to the Supreme Court to reopen the criminal proceedings against him. In December 2008, the Supreme Court decided to reopen the proceedings and referred the case to the plenary session of its criminal division. On 5 March 2009, the plenary session adopted a decision to remit the case for re-examination to the appellate court and to release the applicant from prison. The case was referred to the Kaunas Regional Court. However, the applicant and the Chief Prosecutor of the Kaunas Regional Prosecutor’s Office (Prosecutor) withdrew their appeals. The Lithuanian authorities noted that the punishment of imprisonment imposed on the applicant by the judgment of the appellate court had been more severe than that imposed on the applicant by the court of first instance (which the applicant had already served). As provided in Article 316§5 of the Code of Criminal Procedure, when an appeal is withdrawn, it shall be left unexamined by the court and the proceedings shall be terminated. Consequently, the Kaunas Regional Court granted the requests of the applicant and the Prosecutor, whose appeals were left unexamined and the criminal proceedings were terminated. The applicant thus voluntarily and irreversibly waived his right to a retrial of his case.

      II. General measures

In order to prevent similar violations, the Supreme Court set out, in its decision of 16 December 2008 relating to the Ramanauskas case (see above), the general principles with regard to cases where the criminal conduct simulation model is employed.

First, the Supreme Court stressed that the criminal conduct simulation model as an investigative technique may not be employed to incite the commission of an offence but may be applied only if credible and objective information had already been obtained to the effect that the criminal activity had been initiated.

Secondly, state officials may not act as private persons to incite third parties to commit an offence, while the acts of private persons acting to incite third parties to commit an offence under the control and instructions of state officials shall constitute such incitement.

Thirdly, it may be inferred that there is an act of incitement even if state officials do not act in a very intensive and pressing manner, including in situations when contact with third parties is made indirectly through mediators.

Fourthly, the burden of proof in judicial proceedings lies with the state authorities, which have an obligation to refute any argument raised by a defendant in criminal proceedings in respect of the incitement by state agents to commit an offence.

Fifthly, once the act of incitement is established, no evidence obtained through incitement shall be admissible. The confession of an offence as a result of incitement does not eradicate either incitement or its effects.

Sixthly, it is preferred that undercover techniques are supervised by a court although supervision by a prosecutor does not in itself violate the Convention.

This decision of the Supreme Court is binding upon all domestic courts. Thus, it provides a clear and foreseeable procedure in similar cases.

The Court’s judgments were translated into Lithuanian and placed together with explanatory notes on the website of the Ministry of Justice (www.tm.lt). Translations of the judgments were also placed on the official internet site of the National Courts´ Administration. The Government Agent provided all relevant institutions and domestic courts with the judgments and an explanatory note.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23257

Execution of the judgment of the European Court of Human Rights
Micallef against Malta

(Application No. 17056/06, Grand Chamber judgment of 15 October 2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the right to a fair hearing, due to the lack of objective impartiality of the Chief Justice of the Court of Appeal (violation of Article 6§1) (see details in Appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)232

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

Introductory case summary

This case concerns a violation of the applicant's right to a fair hearing, due to the lack of objective impartiality of the Chief Justice of the Court of Appeal. In 1993 the Court of Appeal dismissed the applicant's sisters' (deceased in 2002) complaint that in 1985 she had been denied the right to be heard in proceedings at which an interim injunction was issued in her absence.

The Chief Justice of the Court of Appeal was the brother of the lawyer representing the opposing party at first instance, and the uncle of the opposing party’s legal representative at appeal. The European Court considered that the close family ties between the opposing party's advocates and the Chief Justice sufficed to objectively justify fears that the presiding judge lacked impartiality (violation of Article 6§1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

2 000 EUR

2 000 EUR

Paid on 7 January 2010

b) Individual measures

The European Court found that with regard to the distress allegedly caused by the circumstances of this case the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

Prior to the Grand Chamber judgment in this case, in 2007, Article 734 of the Code of Organisation and Civil Procedure was amended to allow a judge to be challenged or abstain from dealing with a case (i) if the legal representative pleading before a judge is her or his son or daughter, spouse or ascendant; or (ii) if the legal representative pleading before a judge is the brother or sister of the said judge.

All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs which provides a direct link to the European Court's website: (www.mjha.gov.mt/ministry/links.html).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23358

Execution of the judgments of the European Court of Human Rights
Nakach and Schenkel against Netherlands

(Applications No. 5379/02 and 62015/00, judgments of 30 June 2005 and 27 October 2005,
final on 30 September 2005 and 27 January 2006)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the failure by a regional Court of Appeal (Arnhem Court of Appeal) to draw up formal records of hearings concerning the extention of the applicants' detention in a secure institution and a custodial clinic, respectively (placement at the government’s disposal) (violation of Article 5, paragraph 1); the Schenkel case also concerns the failure to examine promptly the applicant's appeal against the decision extending his confinement in the custodial clinic (violation of Article 5, paragraph 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(2011)233

Information on the measures taken to comply with the judgments in the cases of
Nakach and Schenkel against the Netherlands

      Introductory case summaries

These cases concern the failure by a regional higher court in the Netherlands (Arnhem Court of Appeal) in 2001 and 2000 respectively, to draw up formal records of appeal hearings concerning the extension of the applicants' detention on mental health grounds. The applicants, having been found guilty of attempted homicide but deficient in mental powers, were ordered to be confined in a secure institution (Nakach case) and a custodial clinic (Schenkel case) and placed at the government’s disposal (TBS order). The placement orders were prolonged for two more years. Appeals introduced by the applicants before the Arnhem Court of Appeal against the extension decisions were rejected. The applicants’ representatives requested a copy of the official record of the relevant hearing; however this request could not be satisfied, since no formal record had been drawn up: this had been felt as unnecessary, since no appeal could be filed against such rulings; in addition, this practice was considered as time- and money-saving.

The European Court noted that preparing official records in such situations was a requirement under Dutch law; therefore, by not drawing up official records of the relevant hearings, the Arnhem Court of Appeal did not respect the procedure prescribed by domestic law (violations of Article 5, paragraph 1).

The Schenkel case also concerns the failure to examine promptly the applicant's appeal against the decision of the Amsterdam Regional Court extending the confinement order in a custodial clinic (more than 17 months) (violation of Article 5, paragraph 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

Nakach (5379/02)

-

-

1 840,72 EUR

1 840,72 EUR

 

Paid on
07/07/2005

Schenkel (62015/00)

-

-

3 236,35 EUR

3 236,25 EUR

 

Paid on 29/11/2005

b) Individual measures

The Court found in both cases that the finding of a violation constitutes sufficient just satisfaction in respect of non-pecuniary damage.

In the Nakach case, the Court noted that “it is no longer in dispute that the applicant’s continued detention was ‘lawful’ in the sense that the authorities of the respondent Party found sufficient substantive grounds for their decision” (§ 34).

In the Schenkel case, the Court indicated that the applicant “must have realised that, pending his admission to a custodial clinic, an appeal against a prolongation of his TBS order would – given the reasons why it was imposed – in all likelihood not result in a release from detention” (§ 45).

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

      II. General measures

1) Violation of Article 5, paragraph 1: the Arnhem Court of Appeal, as all other Courts of Appeal, now draw up official records of appeal hearings concerning such issues. In addition, the judgment of the European Court in the case of Nakach was sent out to the judiciary and was published in several legal journals, in particular in European Human Rights Cases (2005, No. 8, pp. 817-821), Nederlands Juristenblad (2005, No. 38, p. 1994), Nederlandse Jurisprudentie (2010, 322) and Delikt en Delinkwent (2005, p. 807).

2) Violation of Article 5, paragraph 4: the Schenkel case presents similarities to that of Rutten (Application No. 32605/96, closed by Final Resolution CM/ResDH (2009)6, adopted on 09/01/2009). It seems nonetheless that the violation was not caused by a systemic problem but rather by an erroneous interpretation by the regional court. Given the direct effect of the European Court's judgments in the legal order of the Netherlands, the domestic courts are expected to align their practice with the Court’s findings and the Convention requirements. For that purpose, the judgment in question was published in legal journals in the Netherlands (Trema, 2005, no. 10, p. 442-444; Nederlands Juristenblad 2006, 266; and Delikt en Delinkwent 2006, 20B).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23459

Execution of the judgment of the European Court of Human Rights
TV Vest As and Rogaland Pensjonistparti against Norway

(Application No. 21132/05, judgment of 11/12/2008, final on 11/03/2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns a violation of the applicants’ freedom of expression, in that a fine was on them imposed by the State Media Authority in 2003 for breaching legislation prohibiting television broadcasting of political advertisements (violation of Article 10) (see details in Appendix);

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

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

Having noted that no award of just satisfaction was made by the Court as the applicants submitted their claims out of time (see details in the Appendix);

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)234

Information about the measures to comply with the judgment in the case of
TV Vest As and Rogaland Pensjonistparti against Norway

      Introductory case summary

This case concerns the violation of the freedom of expression of the applicants, TV Vest AS Ltd, a television broadcasting company, and the Rogaland Pensioners Party (Rogaland Pensjionistparti), on account of a fine imposed by the State Media Authority on 10/09/2003 for breaching legislation prohibiting television broadcasting of political advertisements (violation of Article 10).

The decision of the State Media Authority concerned advertisements aired in 2003 by TV Vest and was based on the prohibition of television broadcasting of political advertising under section 3-1(3) of the Broadcasting Act 1992. The prohibition was permanent and absolute and applied only to television, political advertising in other media being permitted.

The European Court noted that the rationale for the prohibition of television broadcasting of political advertising had been, as stated by the Supreme Court when rejecting the appeal of one of the applicants, the assumption that allowing the use of such a powerful and pervasive form and medium of expression had been likely to reduce the quality of political debate and to give richer parties and groups more scope for opportunities for marketing their opinions.

However, the European Court found that because the Pensioners Party received so little attention in edited TV coverage, that "paid advertising on television had been the sole means for the Pensioners Party to get its message across to the public through that type of medium" (§73). By denying this possibility, the law had put the Pensioners Party at a disadvantage in comparison with the major parties, which had obtained broader editorial broadcasting coverage. Moreover, the content of the advertising was not as such as to lower the level of public debate. Therefore the Court considered that "the fact that the audiovisual media has a more effective and powerful effect than other media could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertising at issue" (§76).

The Court accordingly concluded that there had not been a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition of political advertising and the means deployed to achieve that aim. The restriction could not therefore be regarded as having been necessary in a democratic society (§ 78).

      I. Just satisfaction and individual measures

As regards the question of just satisfaction, no issue arose before the Committee of Ministers as the Court did not award the applicants any sum since they submitted their claim out of time.

As regards domestic measures to give effect to the judgment of the Court, the Norwegian authorities informed the Committee of Ministers that on 8/07/2009, the Media Authority annulled its decision of 10/09/2003 fining TV Vest under section 10-3 of the Broadcasting Act and section 10-2 of the Broadcasting Regulations. The fine was never collected due to the dispute concerning its legality.

The applicants requested the re-opening of the case in order to claim legal costs pertaining to the proceedings before the national courts and the Court.

On 5/10/2009, following a friendly settlement reached by the applicants and the Norwegian Ministry of Culture, the applicants withdrew their request for reopening of the case. On 12/10/2009, the Norwegian Supreme Court accepted the withdrawal of the request for reopening.

II. General measures

Section 3-1(3) of the Broadcasting Act 1992 reads: "Broadcasters may not transmit advertisements for life philosophy or political opinion through television. This applies also to teletext".

The Court acknowledged that the absence of a European consensus with regard to the extent of the regulation of television broadcasting of political advertising could be viewed as emanating from the different perceptions regarding what is necessary for the proper functioning of the "democratic" system in the various states. However, on the basis of its assessment of the circumstances of the case (see above), it concluded that "the view expounded by the respondent government, supported by the third party intervening governments, that there was no viable alternative to a blanket ban must therefore be rejected" (§77).

In response to the Court’s judgment, the Norwegian authorities informed the Committee of Ministers (10/09/2009) that two general measures have been adopted to prevent similar violations. These were proposed in a white paper of the Ministry of Culture and Church Affairs and approved by the Norwegian Parliament on 29/05/2009.

Improved coverage of small political parties by the national public broadcaster (NRK)

First, the Statutes of the national public broadcaster (NRK) were amended. The NRK is now obliged to provide broad and balanced coverage of elections in accordance with the amended Section 12 (b) of the Statutes of the NRK, "The NRK shall provide a broad and balanced coverage of political elections. All parties and lists over a certain size shall normally be included in the editorial election coverage". According to the white paper, the objective behind this amendment is to provide that smaller political parties, such as the Pensioners Party, are included in the NRK's editorial coverage.

The Media Authority monitors NRK's respect of its obligations under the new provisions. Judicial review is available against the Media Authority’s decisions.

The NRK has given an account of the editorial principles that governed its election coverage during elections in 2009 (parliamentary elections) and 2011 (municipal elections) in a letter dated 10/03/2009 to the Ministry where it stated that: "Parties with eligible candidates in more than half of the Regions in the national elections or in more than one municipality in the local elections, will normally be included in the NRK's election coverage." This included the Pensioners Party and other political parties of a similar size. Smaller parties may also be covered under NRK's obligation to provide a broad and balanced coverage.
The Norwegian authorities reported that during the parliamentary elections in September 2009, the Pensioners Party and other political parties of similar size were included in the NRK's election coverage. In any case, the authorities underline that the situation of smaller parties is also covered by the second general measure.

Access to a new TV channel “Frikanalen”

The second measure relates to the fact that all political parties have been able to use a new TV channel, “Frikanalen” (the Open Channel), since October 2008 as a means to communicate political messages to the public. This also includes political parties smaller than the Pensioners Party.

Frikanalen is an open channel in which organisations or individuals broadcast their own programmes. The channel is owned by more than 60 different non-profit organisations in Norway and is financed by support from the Ministry of Culture and Church Affairs and a membership fee. Frikanalen was started in October 2008 and is distributed through the digital terrestrial television network which today covers more than 95% of households. The OSCE’s assessment of 2009 that the coverage appeared to be only 30% is thus no longer relevant.

The terms of the license permit the editor of the Frikanalen to delegate editorial responsibility to organisations or individuals. The editor's sole obligation is to divide broadcasting time between the different organisations and to schedule their broadcasts. The Channel as such does not produce or broadcast any programmes of its own. To facilitate party political broadcasts during elections, the Ministry of Culture and Church Affairs in May 2009 signed an agreement with Frikanalen which states:

      "Reference is made to the objectives of the Frikanalen 'to strengthen the freedom of speech and democratic participation by enabling new groups the opportunity to communicate by way of the television medium'. Reference is furthermore made to the Ministry's objectives concerning an open channel. In order to fulfill these aims Frikanalen is to facilitate freedom of speech for all political parties and lists. During the last three weeks before an election such political parties and lists shall be given priority. Frikanalen shall furthermore enable regionalisation of its signals in connection with Municipal and Regional Elections in order for local parties and lists to obtain television coverage through Frikanalen."

The Norwegian authorities report that during the last parliamentary elections the Pensioners Party exercised the opportunity to broadcast programmes on Frikanalen. As of 2009 four political parties had broadcast their programmes on this channel, including smaller political parties. The Open Channel today operates 24h/24h, 7 days a week, and is designed also to be accessible via cable and internet.

Other

In addition, as particularly highlighted in the Court's judgment and in the final resolution in the case of Bergens Tidende (See Resolution ResDH(2002)69), the direct effect of the European Court's case-law is accepted by Norwegian courts and authorities.

A summary of the judgment in Norwegian, with a link to the original judgment, was published on the Internet site Lovdata (http://www.lovdata.no/avg/emdn/emdn-2003-012148-2-norge.html). The Lovdata web site is widely used by all who practice law in Norway, civil servants, lawyers, prosecutors and judges alike. The Norwegian Centre for Human Rights (an independent national human rights institution) writes the summaries of the Court's judgments for the database.

      III. Conclusions of the respondent state

The government considers in the light of the above considerations that no other individual measure appears necessary in this case and that the general measures taken will prevent other, similar violations. Norway has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23560

Execution of the judgment of the European Court of Human Rights
Hammern against Norway

(Application No. 30287/96, judgment of 11 February 2003, final on 11 May 2003)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the presumption of innocence in that suspicions were expressed in a court decision dealing with compensation for the applicant because of criminal proceedings engaged against him on charges of which he was eventually acquitted (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 noted that no claim for just satisfaction was submitted to the Court and that consequently no award of just satisfaction was made in the Court’s judgment (see details in the Appendix),

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)235

Information about the measures to comply with the judgment in the case of
Hammern against Norway

      Introductory case summary

The case concerns a violation of the presumption of innocence on account of judicial decisions taken in 1995 subsequent to the applicant’s acquittal in criminal proceedings (violation of Article 6§2). The Court found that the decisions of 28 February 1995 of the Frostating High Court and of 8 June 1995 of the Norwegian Supreme Court, which had limited the applicant’s right to compensation for the damage suffered as a result of the criminal proceedings, were based on a reasoning clearly voicing suspicion of criminal guilt despite the acquittal (in application of Article 444 of the Criminal Procedure Act as worded at the time).

      I. Just satisfaction and individual measures

The applicant’s lawyer submitted no claim for just satisfaction to the Court and the Court’s judgment did not deal with the question of the application of Article 41.

As regards the measures taken by the applicant subsequent to the Court’s judgment to obtain redress from national authorities, the government indicated before the Committee of Ministers that the applicant could receive redress by requesting reopening of the proceedings by either a civil or a criminal-law procedure.

The applicant indicated to the Committee of Ministers that he had been ill advised by his lawyer as regards the question of just satisfaction before the Court and that he wished to request compensation from the Norwegian Government.

New tort action

To this end, on 12 December 2003 the applicant filed a new independent tort action against the Norwegian State. He did not request the reopening of the proceedings at issue. Instead he requested compensation for the costs and expenses incurred in the proceedings before the Court, expenses that he would have in order to clear his name and just satisfaction (non-pecuniary damage) because of the violation of the Convention as determined by the Court.

The new tort action was rejected by the courts of first and second instance and finally, on 3 June 2005, by the Norwegian Supreme Court (Rt. 2005 p. 730). The Supreme Court found that the decisions of Norwegian courts criticised by the European Court were still valid and gave the compensation issue the statute of res iudicata. The Supreme Court added, however, referring to Recommendation (2000)261, that the possibility offered by the Code of Civil Procedure to request re-opening of proceedings seemed to satisfy the Convention's requirement to provide redress. The Supreme Court also noted, however, that such an action was now time barred – see further below in connection with the second request for reopening of proceedings.

Complaint to the European Court

However, instead of requesting the reopening of the proceedings, the applicant sent a new application to the Court and alleged that Article 13 of the Convention had been violated because the Norwegian courts had refused to treat his claim for damages, inasmuch as it was a direct consequence of the judgment of the Court. On 1 June 2007 the Court (first section) rejected the application (No. 44125/05) by decision. The Court stated:

      "In the light of the material available to the Court, and to the extent that the Appeal falls within the competence of the Court, the Court has under no circumstance found any fact that would indicate a violation of the rights and freedoms described and protected by the Convention and its Protocols"62

First requests for reopening

On 26 February 2007 the applicant requested the Norwegian Supreme Court to reopen the proceedings criticised by the Court, basing himself on the rules governing criminal procedure under which the time limit for such a request had not yet expired. In addition, he sought the reopening of the Norwegian Supreme Court’s decision of 3 June 2005 rejecting his new tort claims.

On 23 July 2007 (Rt. 2007 p. 1119) the Norwegian Supreme Court rejected the requests.
The request to reopen the two decisions questioned by the Court was rejected on the ground that the applicable rules were those relating to civil proceedings and that consequently the request had to be put before the High Court, and not the Supreme Court. The reopening request regarding its decision of 3 June 2005 was found to lack any legal basis.

Second request for reopening

On 16 August 2007 the applicant filed a new request of reopening, now under the rules governing civil proceedings before the High Court of Frostating. The request was rejected on 8 September 2008 as being out of time. The applicant appealed to the Supreme Court which, on 15 December 2008 (Rt. 2008 p. 1719) confirmed the rejection, as the time-limit set by the Code of Civil Procedure had been exceeded: reopening had to be requested within three months from the circumstances that substantiated the request, i.e. the European Court’s judgment of 11 February 2003.

The Supreme Curt noted, however, that the law provided a possibility to waive this three-month time limit in case of a non-deliberate breach thereof. Such a request had, however, to be made less than a month after the "opportunity [to seek reopening] arose". The Supreme Court found that in its earlier decision of 3 June 2005, rejecting the new tort action (see above), the applicant had been made expressly aware of the fact that reopening under the Code of Civil Procedure was the right remedy. The fact that it had also noted such a reopening request appeared to be time-barred did not change the conclusion that as from the date of that decision the applicant had been informed of the correct remedy and had had the “opportunity” to request a waiver of the three-month time limit. As he had not done so within one month from the decision of 3 June 2005, the possibility to request a waiver had been lost.

The applicant’s further argument that the Norwegian state had a direct duty to pay him compensation independently from any procedural limitations was rejected, as the Supreme Court found that it was the complainant himself who had chosen not to request compensation before the Court and that the right to reopen the proceedings had clearly satisfied the right to an effective remedy as described in the Convention Article 13.

Subsequently, the applicant filed a lawsuit against one of his former lawyers (the lawyer who pleaded his case before the Court) and demanded compensation. A friendly settlement was reached in Oslo County Court on 13 October 2009. The content of the friendly settlement is not known to the Norwegian government.

      II. General measures

The provisions of the Criminal Procedure Act relating to compensation in case of acquittal, including section 444, were amended, shortly before the Court’s judgment was rendered in the present case, by Act No. 3 of 10/01/2003. According to the amended law, it is no longer required, in order to obtain compensation for detention after acquittal, to prove that it is probable that the accused did not carry out the act that formed the basis for the charge of which he or she has been acquitted.

The judgment of the European Court was published on the Internet site of the Norwegian government (www.odin.dep.no) and sent out to judicial authorities in a press release by the Ministry of Justice on 11/02/2003. 

      III. Conclusions of the respondent state

The government considers in the light of the considerations above that no further individual measure appears necessary in this case and that the general measures taken will prevent other, similar violations. Norway has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23663

Execution of the judgments of the European Court of Human Rights
in 2 cases against Norway

(see below)

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;

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

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

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

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

      DECIDES to close the examination of these cases.

Information on the judgments in 2 cases against Norway

Case

(Application No.)

Judgment of

Final on

Closure decision

Orr
(31283/04)

15/05/2008

01/12/2008

March 2011
1108th meeting

A.
(28070/06)

09/04/2009

09/07/2009

June 2010
1086th meeting

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23764

Execution of the judgment of the European Court of Human Rights
Folgerø and others against Norway

(Application No. 15472/02, judgment of 29 June 2007, Grand Chamber)

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

Having regard to the final judgment transmitted by the Court to the Committee;

Recalling that the violation of the Convention found by the Court in this case concerns the applicants’ right to ensure for their children education and teaching in conformity with their own religious and philosophical convictions (violation of Article 2 of Protocol No. 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)237

Information about the measures to comply with the judgment in the case of
Folgerø and others against Norway

      Introductory case summary

The case concerns the violation of the applicants’ right to ensure for their children education and teaching in conformity with their own religious and philosophical convictions (violation of Article 2 of Protocol No. 1).

The European Court found that the possibility for the applicants to obtain a partial exemption for their children from the KRL classes (lessons on Christianity, religion and philosophy which were introduced as a reform of compulsory primary and secondary school in the 1990s) violated Article 2 of Protocol No. 1 given both the qualitative and quantitative differences in favour of Christianity inherent in the teaching of this subject and the shortcomings of the system of partial exemption.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

70 000 EUR

70 000 EUR

Paid on 27/09/2007

b) Individual measures

The European Court considered that the finding of the violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage. The applicants’ children are no longer in compulsory education. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

1) Developments prior to the European Court’s judgment:

The Court noted that the government had already undertaken to reform the legal framework following a decision of the United Nations Human Rights Committee in 2004 (seised by different applicants) declaring the laws to be incompatible with the International Covenant on Civil and Political rights of 1966.

In 2005, the Parliament thus adopted certain amendments and additions to the 1998 Education Act, which entered into force with immediate effect; these changes were completed by a government circular (F-02-05). This remedied some of the issues which the Court subsequently found to be in violation of the European Convention (the Court examined the legal framework as it applied at the time of the violations, i.e. 1999-2001):

a) As regards the content of the KRL classes, the 2005 amendments aimed at redressing the qualitative difference between the teaching of Christianity and other religions and philosophies, in particular by deleting the reference to Christianity as the starting point for teaching and by formulating each learning objective in the same quantitative manner for all religions and philosophies. The Curriculum does not include activities that could be regarded as the practice of a particular belief.

b) The partial exemption scheme was also improved and it has become sufficient for parents to notify their intention to have an exemption. No reasons are required. Schools are obliged to provide parents with sufficient information on how exemption functions and on the planned teaching in the subject. They must ensure that exemption is implemented and adapt teaching in consequence. Exemption, however, may not be requested from the academic content of the Curriculum.

2) Developments following the European Court’s judgment:

New amendments to the 1998 Education Act entered into force on 01/08/2008 with effect from the school year 2008/2009.

a) As regards the content of the classes, the amendments aim to further respond to the European Court’s concerns regarding the qualitative differences that applied to the teaching of Christianity as compared to that of other religions and philosophies. For this purpose the name of the subject has been altered to Religion, Philosophies of Life and Ethics (RE), and it is specified that it must be presented in an objective, critical and pluralistic manner, in accordance with human rights.

A new clause defining the object of the classes was adopted by Parliament in December 2008. It is the authorities’ opinion that the new clause no longer gives undue preference to the Christian faith. Christianity is mentioned as one, but not the only source, on which the fundamental values of education must be founded.

The Curriculum has been adapted to the new legislative amendments. It emphasises that religions and philosophies of life are to be presented in an objective, critical and pluralistic manner and that working methods which may be regarded as being related to religious practice should not be part of the Curriculum. A circular letter of August 2008 gave all schools information about the amendments and instructed them to take immediate measures to implement the new Curriculum for the subject Religion, Philosophies of Life and Ethics.

b) As regards the partial exemption scheme, a new paragraph was added to the provision on partial exemption stressing that schools shall respect the religious and philosophical convictions of pupils and their parents and ensure the right to equivalent education. The government submitted that schools are obliged to give parents more information about the content of lessons. In addition, any new dispute on the application of the exemption clause in the new regulatory environment may be brought before the Norwegian courts which accept the direct effect of the judgments of the European Court and will thus consider the matter with a view to preventing any new violation of the Convention.

3) Publication and dissemination:

In August 2007, the Ministry of Education and Research sent out a circular to all municipalities and primary and lower secondary schools with information about the judgment and its consequences for the KRL subject. It was particularly emphasised that instruction in the subject should only consist of information, and not include preaching or religious practice. It was furthermore emphasised that the teaching should be carried out in a neutral and objective manner and promote the same degree of respect and understanding for all religions and philosophies. All schools were instructed to provide parents with sufficient information about the planned teaching in the subject, and schools were instructed to respect the requests from parents for partial exemption from activities in the KRL subject. It was underlined that the right to exemption should be practiced liberally, particularly as to the Christian elements of the subject. The schools were instructed to be “extremely cautious about setting aside parents’ requests for exemption”.

A summary of the judgment in Norwegian, with a link to the original, was published on the Internet site Lovdata (http://www.lovdata.no). The Lovdata web site is widely used by all who practice law in Norway, civil servants, lawyers, prosecutors and judges alike. The Norwegian Centre for Human Rights (an independent national human rights institution) prepares summaries of the Court's judgments for the database.

      III. Conclusions of the respondent state

The government considers that in the circumstances of the case, no special individual measure is required and that the general measures adopted will in any event prevent similar violations and that Norway has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23865

Execution of the judgment of the European Court of Human Rights
Zawadka against Poland

(Application No 48542/99, judgment of 23 June 2005, final on 12 October 2005)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the right to respect for family life due to the state’s failure in 1998 to meet its positive obligation to take measures to enforce the applicant’s right of contact with his son, a minor (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment, having regard to the it’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

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

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

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)238

Information about the measures to comply with the judgment in the case of
Zawadka against Poland

      Introductory case summary

This case concerns a violation of the right to respect for family life due to the state’s failure in 1998 to meet its positive obligation to take measures to enforce the applicant’s right of contact with his son, a minor.
The European Court found that the Polish authorities had failed to take practical steps first to encourage the parties to co-operate in the enforcement of access arrangements and, secondly, secure concrete and appropriate assistance by competent state agents within a specific legal framework suited to the needs of separated parents and their child. The Court concluded that the domestic authorities failed in their positive obligation to provide the applicant with assistance which would make it possible for him to enforce his parental and access rights effectively (violation of Article 8 of the Convention).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

100 EUR

100 EUR

Paid on 09/01/2006

b) Individual measures

The proceedings concerning the enforcement of the judicial decision of 24/02/1998 concerning the applicant's visiting rights were discontinued at an unspecified date because for more than three years the applicant was not able to indicate the address of his child and his mother.

According to the authorities, it was open to the applicant to institute proceedings on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, if his son were residing abroad, and/or request the reopening of proceedings concerning the enforcement of the judicial decision concerning his visiting rights. The applicant was informed of these possible avenues of redress in March 2007.

The applicant did not institute any proceedings with a view to re-establishing contact with his son. Nor did he submit any request to the Committee of Ministers in this respect.

The European Court concluded that the finding of a violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage sustained by the applicant.

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

      II. General measures

The European Court's judgment has been published on the website of the Ministry of Justice www.ms.gov.pl and sent out to the presidents of courts of appeal with a circular drawing judges' attention to the Court's reasoning in the case. It has been also sent out to the National Police Commander-in-Chief, who in turn requested competent directors and commanders to publish it on the Police website and to include it in police officers' training programmes.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)23966

Execution of the judgments of the European Court of Human Rights
Tabor and 6 other cases against Poland

(Tabor, application No. 12825/02, judgment of 27/06/2006, final on 27/09/2006
Biziuk, application No. 15670/02, judgment of 15/01/2008, final on 15/04/2008
Bobrowski, application No. 64916/01, judgment of 17/06/2008, final on 01/12/2008
Orzechowski Mirosław, application No. 13526/07, judgment of 13/01/2009, final on 13/04/2009
Zagawa, application No. 76396/01, judgment of 15/01/2008, final on 15/04/2008
Zaniewski, application No. 14464/03, judgment of 15/01/2008, final on 15/04/2008
R.D., application No. 29692/96, judgment of 18/12/2001, final on 18/03/2002)

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

Having regard to the 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 denial of access to the Supreme Court on the ground of the absence of reasons for the dismissal of requests for legal aid, which deprived the applicants of the possibility to lodge a cassation appeal and also, in the cases of Tabor and Zaniewski, the delay in these dismissals (violations of Article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)239

Information on the measures taken to comply with the judgments in the cases of
Tabor and 6 other cases against Poland

      Introductory case summary

These cases concern violations of the applicants' right to a fair trial following second-instance courts’ unreasoned refusal to grant them legal aid, given between 1996 and 2007 (violations of Article 6§1). In the Tabor and Zaniewski cases the relevant decisions were issued after the time-limit for filing an appeal had passed.
The European Court noted that under domestic law, the grant of legal aid depended on the petitioners' financial situations and their ability to afford court fees. Therefore, particularly in circumstances where the applicants were unemployed and claiming compensation for unlawful termination of employment contracts, the principle of fairness required the courts to give reasons for rejecting the applicants' requests for legal aid (see §45 of the Tabor judgment). In addition, as professional legal assistance in cassation proceedings is obligatory under domestic law, a decision refusing to grant legal aid, given outside the time limit for lodging an appeal, deprived the applicants of any realistic chance to appeal before the Supreme Court.

      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

Tabor (12825/02)

-

2 000

315

2 315 EUR

 

Paid within the time-limit

Biziuk (15670/02

-

2 000

100

2 100 EUR

 

Paid within the time-limit

Bobrowski (64916/01)

-

2 000

150

2 150 EUR

 

Paid within the time-limit

Zagawa (76396/01)

-

2 000

650

2 650 EUR

 

Paid within the time-limit

Zaniewski (14464/03)

-

2 000

-

2 000 EUR

 

Paid within the time-limit

Orzechowski Mirosław (13526/07)

-

2 000

-

2 000 EUR

 

Paid within the time-limit

R.D. (29692/96)

-

2 000

1000

3 000 EUR

 

Paid within the time-limit

b) Individual measures

Following the judgments of the European Court, the applicants have the right to make an application to re-establish the time-limit for lodging cassation appeals. Consequently, the Committee of Ministers considers that no other individual measure is required.

      II. General measures

On 19/04/2010, a reform of the Code of Civil Procedure entered into force. According to the new Article 117§6, if a request for legal aid is lodged for the first time in appellate or cassation proceedings, the appellate or cassation court can either grant the request or refer it for re-examination to the first-instance court. In the case of a referral, where the first-instance court rejects the request for legal aid, it must give reasons for its decision, which can then be appealed (Articles 357§1 and 394§1 of the Code of Civil Procedure).

The judgment in Tabor was published on the website of the Ministry of Justice and disseminated to judges.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24067

Execution of the judgment of the European Court of Human Rights
Rybacki against Poland

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”)68,

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

Case name (App. No.)

Judgment of

Final on

Rybacki (52479/99)

13/01/2009

13/04/2009

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)240

Information about the measures to comply with the judgment in the case of
Rybacki against Poland

Action Report69

Case description

This case concerns the excessive length of detention on remand of the applicant between 1996 and 1999, as the grounds for prolonging detention were neither “relevant” nor “sufficient” (violation of Article 5§3 of the Convention).

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 of Human Rights 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.

I. Individual measures

With respect to the violation of Article 5§3 of the Convention it should be noted that the impugned detention on remand is over. With respect to the violation of Article 6§3 (c) in conjunction with Article 6§1 of the Convention the applicant had an opportunity to seek reopening of the criminal proceedings pursuant to Article 540§3 of the Code of Criminal Procedure. The applicant did not submit any claims for just satisfaction. In these circumstances, no further measure appears necessary.

II. General measures

1. Violation of Article 5§3 of the Convention: General measures are examined in the context of the Trzaska group of cases (application no 25792/94).

2. Violation of Article 6§3(c) in conjunction with Article 6 § 1 of the Convention:

a. Legislative changes: The Court has observed that the right of the defendant to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6§3(c) of the Convention. This right, which is not explicitly set out in the Convention, may be however subject to certain restrictions (§ 56 of the Court’s judgment).

Under Article 64 of the 1969 Code of Criminal Procedure, applicable at the relevant time, a defendant remanded in custody was entitled to communicate with his or her counsel in the absence of any other persons unless the prosecutor reserved the right to be present whenever the applicant saw his defence counsel (§ 30 of the Court’s judgment). This provision is no longer in force.

According to Article 73§4 of the new Code of Criminal Procedure of 1997 the request of the prosecutor to be present in person or to be represented by a person authorised by him when a detained person communicates with his counsel, cannot be maintained or made after the expiry of 14 days from the date of the detention of the suspect. This can be considered as a restriction allowed under the Convention.
Taking into consideration the legislative changes of 1997, no further measure appears necessary.

b. Publication and dissemination: The Court’s judgment was translated into Polish and published on the Internet site of the Ministry of Justice (www.ms.gov.pl). The judgment has been sent to all courts of appeal and the General Prosecutor’s Office with request to disseminate it among judges and prosecutors. It has been also sent to the National School of Judiciary and Public Prosecution with request to include it in the training program addressed to judges and prosecutors. The Ministry of Justice also requested the Central Board of Prison Service to disseminate the judgment among subordinate organizational units.

III. Conclusions of the respondent state

The government considers that no individual measures are necessary in the present case and that the general measures adopted, in particular legislative changes, publication and dissemination of the judgment of the European Court of Human Rights, will prevent similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Convention with respect to the breach of Article 6§3(c) in conjunction with Article 6§1 of the Convention. Further, it notes that the general measures concerning the violation of Article 5§3 of the Convention are examined in the context of the Trzaska group of cases (Application No. 25792/94).

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24170

Execution of the judgment of the European Court of Human Rights
Kita against Poland

(Application No. 57659/00, judgment of 08/07/2008, final on 08/10/2008)

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 violation of the Convention found by the Court in this case concerns the right to freedom of expression (violation of article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the 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 violation by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)241

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

      Introductory case summary

The case concerns a violation of the right to freedom of expression following court decisions delivered in 1999 in summary proceedings based on the Local Elections Act (violation of Article 10).

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 000 EUR

2 150 EUR

4 150 EUR

Paid on 04/11/2008

b) Individual measures

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

      II. General measures

Measures have already been taken to avoid new violations of the same kind as that found in this case, particularly through the amendment to Article 72 of the 1998 Law on Local Elections, which previously allowed domestic courts to impose significant damages. The part of this provision making it possible to order the payment of damages was repealed on 26/07/2002. Moreover, the authorities provided examples of the case-law of certain appeal courts concerning the application of this provision (decisions of the Katowice Court of Appeal of 01/10/1998 in case No I ACz 972/98 and of 07/11/2002 in case No I ACz 1956/02 and the decision of the Białystok Court of Appeal of 10/11/2006 in case No I ACz 872/06) (see also Resolution CMResDH(2011)16 in the case Kwiecień against Poland).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24271

Execution of the judgment of the European Court of Human Rights
Feliciano Bichao case against Portugal

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”)72,

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

Case name (App. No.)

Judgment of

Final on

Feliciano Bichao (40225/04)

20/11/2007

20/02/2008

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)242

Information about the measures to comply with the judgment in the case of
Feliciano Bichao against Portugal

Action report on the execution
of the judgment of the European court of Human Rights
in the case of João Carlos Feliciano Bichão
(Application No. 40225/04) against Portugal

Original French

I. IDENTIFICATION OF THE CASE

Date of judgment: 20/11/2007
Application No.: 40225/04
Name of applicant: João Carlos Feliciano Bichão
Brief description of the violation:
(Article 6§1of the Convention) – Failure to disclose to the applicant a memoranda of the Public Prosecutor before the Court of Appeal (in 2003) and before the Constitutional Court (in 2004).

II. INDIVIDUAL MEASURES: The European Court of Human Rights found that the finding of a violation of Article 6§1 constituted in itself sufficient just satisfaction for non-pecuniary damage possibly suffered by the applicant. The Court found no causal link between the violation found and the pecuniary damages alleged and consequently rejected the applicant’s claim in this respect.
The criminal proceedings at issue concerned a dispute between the applicant and the mayor of a municipality concerning the ownership of a path alongside the applicant's land. As regards the weight that the memoranda of the public prosecutor could have had on the outcome of the proceedings at issue, it should be noted that the investigating judge had rejected the applicant's request for investigations, considering that there was no possibility of a criminal conviction in this case, due to the lack of objective elements of offence. The decision of the investigative judge was confirmed in 2003 by the appeal court.
Accordingly, it is not necessary to adopt individual measures.

(a) Payment of just satisfaction (costs and expenses):
Date: 23/05/2008
Amount: 1650 EUR

(b) Other: /

III. GENERAL MEASURES

(a) Publication: The judgment was immediately placed on line on the official site of the Procuradoria-Geral da República – Office for Documentation and comparative Law.

(b) Communication and dissemination: The judgment was communicated to the Judicial Service Commission on 27/11/2007 with a view to its dissemination and then disseminated.

(c) Other: The failure to disclose the memoranda of the Public Prosecutor in reply to the applicant’s appeal did not comply with Article 413§2 of the Code of Criminal Procedure, which stated that the memoranda of the parties concerned by the appeal had to be disclosed to the appellant (§23 of the judgment). The law provision is clear and this is an isolated violation.

As regards the procedure before the Constitutional Court (Tribunal Constitucional), the latter has adopted a procedure concerning the service of the memoranda of the Public Prosecutor to the parties. In a letter addressed to the Agent of the Portuguese government before the European Court of Human Rights the Constitutional Court indicated that, following the notification of the judgment of 20 November 2007, it adopted internal measures whereby the position of the Public Prosecutor is communicated to the appellant if he/she has not been informed of the reasons for the inadmissibility of an appeal.

In addition, the Procuradoria-Geral da República has sent to all judicial districts (distritos juridais) a recommendation aimed at asking further efforts to fully apply the adversarial principle in cases brought before courts competent to deal with family affairs and matters concerning minors.

The unofficial translations of the letter of the Constitutional Court, as well as of the letter addressed by the Procuradoria-Geral da República to the judicial districts have been provided to the Secretariat.

IV. CONCLUSION
The Portuguese authorities consider that the measures referred to above are sufficient to ensure the execution of the judgment and that no further individual or general measures are necessary.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24373

Execution of the judgment of the European Court of Human Rights
Perdigão against Portugal

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”)74,

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

Case name (App. No.)

Judgment of

Final on

Perdigão (Application No. 24768/06)

16/11/2010

16/11/2010

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)243

Information about the measures to comply with the judgment in the case of
Perdigão against Portugal

Action report on the execution of the judgment of the European Court of Human Rights
in the case of João José Perdigão and Maria José Queiroga Perdigão
(application No. 24768/06) against Portugal

ORIGINAL FRENCH

I. IDENTIFICATION OF THE CASE

Date of judgment: 16 November 2010 (Grand Chamber)

Application No.: 24768/06

Names of the applicants: João José Perdigão and Maria José Queiroga Perdigão

Brief description of the violation: Violation of Article 1 of Protocol No. 1 (domestic proceedings brought by the applicants concerning the expropriation of a building of which they were owners; the sum paid by the applicants in court fees was higher than the amount awarded to them in compensation for the expropriation).

II. INDIVIDUAL MEASURES

The European Court awarded the applicants an amount in respect of all heads of damage (see paragraph 86 of the judgment). Given that the just satisfaction covers both pecuniary and non-pecuniary damage, with the payment of the amount awarded by the Court all damage sustained by the applicants has been redressed, and thus no further individual measure is necessary.

(a) Payment of just satisfaction (see just satisfaction form provided to the secretariat)
(b) Amount: 191 285,65 EUR
(c) Date: 12/04/2011
(d) Other:

III. GENERAL MEASURES

(a) Publication, communication and diffusion: The judgment was immediately put on line on the official website of the Procuradoria-Geral da República – Office of Documentation and Comparative Law, translated into Portuguese and communicated to the High Judicial Commission for diffusion, and to the President of the constitutional Court (Tribunal Constitucional).

(b) Other: The Court Fees Code then in force, on the basis of which the fees paid by the applicants were calculated, has since been modified. The new Code now fixes a ceiling making it impossible to fix such large amounts (as the European Court of Human Rights acknowledged in paragraph 77 of the judgment – see also paragraphs 45 and 46).

In particular, the Court noted (paragraph 77) that: “the enactment, on 24 February 2008, of the new Court Fees Code, which placed an upper limit on the sums that could be charged in court fees. If the new rules had been applied in the instant case, the court fees imposed would have been considerably lower (see paragraphs 45 and 46 above). The new rules thus seem less likely to give rise to a situation such as that which arose in the present case.”

IV. CONCLUSION

Taking into account the fact that, as a result of the amount paid to the applicants, they have been compensated for the damage resulting from the violation found and the entry into force of the new Court Fees Code (Decree-Law No. 34/2008 of 26 February 2008) which makes such violations no longer possible, the Portuguese authorities consider that the measures set out above are sufficient to execute the judgment and that it is not necessary to adopt further individual or general measures.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24475

Execution of the decision of the European Court of Human Rights
Rosu against Romania

(Application No. 32731/03, decision of 7 September 2010)

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly-settlement were executed by the respondent state,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close its examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24576

Execution of the judgments of the European Court of Human Rights
8 cases against Romania concerning the quashing of final court decisions

(see details in Appendix)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the quashing of final court decisions by the Supreme Court following applications for nullity (recursuri in anulare) lodged by the Procurator General (violations of Article 6, paragraph 1 and/or 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 judgments;

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

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)245

Information on the measures taken to comply with the judgments in 8 cases against Romania concerning the quashing of final court decisions

      Introductory case summary

These cases concern the quashing of final court decisions by the Supreme Court, between 2002 and 2004, following applications for nullity lodged by the Procurator General under Article 330 and Article 3301 of the Code of Civil Procedure (violations of Article 6, paragraph 1 in the case of SC Vălie Prod SRL, violation of Article 1 of Protocol No. 1 in the case of Simion and violations of both Article 6, paragraph 1 and Article 1 of Protocol No. 1 in the cases of Gâgă, Konnerth, Piaţa Bazar Dorobanţi SRL, Raicu, Stoişor and others and Şerbănescu).

      I. Payments of just satisfaction and individual measures

    a) Details of just satisfaction

Name and application No.

Judgment of

Final on

Just satisfaction - Total

Payment deadline

Date of payment

Gâgă (42792/02)

7/02/2008

7/05/2008

3 550 EUR

7/08/2008

4/11/2008
(in conditions that seem to be accepted by the applicants)

Konnerth (21118/02)

12/10/2006

12/01/2007

49 200 EUR/restitution

12/04/2007

25/04/2007
(in conditions that seem to be accepted by the applicant)

Piaţa Bazar Dorobanţi SRL (37513/03)

4/10/2007

4/01/2008

446 535 EUR

4/04/2008

11/04/2008
(in conditions that seem to be accepted by the applicant)

Raicu (28104/03)

19/10/2006

19/01/2007

37 100 EUR/restitution

19/04/2007

28/03/2007

SC Vălie Prod SRL (23507/04)

23/03/2010

4/10/2010

2 115 EUR

4/01/2011

14/12/2010

Simion (13028/03)

14/12/2006

14/03/2007

40 200 EUR/restitution

14/06/2007

10/07/2007(in conditions that seem to be accepted by the applicant)

Stoişor and others (16900/03)

7/04/2009

7/07/2009

486 700 EUR

7/10/2009

9/10/2009 (in conditions that seem to be accepted by the applicants)

Şerbănescu (33945/04)

7/02/2008

7/05/2008

577 500 EUR/restitution

7/08/2008

14/10/2008 (in conditions that seem to be accepted by the applicant)

b) Individual measures

In the Konnerth, Raicu, Simion, Stoişor and others and Şerbănescu cases, the applicants received just satisfaction in respect of pecuniary damage corresponding to the value of the real property awarded to them by the quashed decisions.

In the Piaţa Bazar Dorobanţi SRL case, the European Court awarded the applicant just satisfaction for the pecuniary damage incurred as a result of the quashing of the final decision.

In the Gâgă case, the European Court did not award just satisfaction in respect of pecuniary damage, having noted that the applicants did not submit a claim to this end. In this case, it should be noted that Article 322 § 9 of the Code of Civil Procedure allows the applicants to lodge an extraordinary appeal (revizuire) following a judgment by the European Court finding a violation of the Convention, in order to obtain restitutio in integrum.

In the SC Vălie Prod SRL case, the European Court did not award just satisfaction in respect of pecuniary damage, having considered that the applicant should first bring a case before the domestic courts in conformity with Article 322 § 9 of the Code of Civil Procedure.

In all cases, the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

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

      II. General measures

The government referred to the measures taken to avoid new, similar violations, as set out in Resolution CM/ResDH(2007)90 (in particular the fact that Articles 330 and 330¹ of the Code of Civil Procedure had been repealed by Article 1§17 of Emergency Ordinance No. 58 of 25/06/2003 passed by the government, published in the Official Journal on 28/06/2003, which received parliamentary approval on 25/05/2004).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24677

Execution of the judgment of the European Court of Human Rights
SC Plastik ABC SA against Romania

(Application No. 32299/03, judgment of 7 February 2008, final on 7 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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the partial quashing of a final court decision by the Supreme Court following an application for nullity (recurs in anulare) lodged by the Procurator General in criminal proceedings (violations of Article 6, paragraph 1 and of Article 1 of Protocol No. 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)246

Information about the measures to comply with the judgment in the case of
SC Plastik ABC SA against Romania

      Introductory case summary

This case concerns the quashing by the Supreme Court, in 2003, of the part of the operative provisions of a final court decision concerning the obligation of the Ministry of Finance to pay damages to the applicant, following an application for nullity lodged by the Procurator General under Article 410 of the Code of Criminal Procedure (violations of Article 6, paragraph 1 and Article 1 of Protocol No. 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

140 000 EUR

2 500 EUR

500 EUR

143 000 EUR

Paid on 14/08/2008 (in conditions that seem to be accepted by the applicant)

b) Individual measures

The European Court awarded the applicant just satisfaction for the pecuniary and non-pecuniary damage incurred as a result of the partial quashing of the final decision.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The general measures taken by the Romanian authorities are presented in the Final Resolution CM/ResDH(2011)27 adopted in the cases of Bota, Sergiu Popescu and Precup against Romania (judgments of 04/11/2008, 16/12/2008 and 27/01/2009).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24778

Execution of the judgment of the European Court of Human Rights
Nicuţ-Tănăsescu against Romania

(Application No. 25842/03, judgment of 6 July 2010, final on 6 October 2010)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the applicant’s right to be brought promptly before a judge (violation of article 5, paragraph 3) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)247

Information about the measures to comply with the judgment in the case of
Nicuţ-Tănăsescu against Romania

      Introductory case summary

This case concerns the fact that the applicant, whose detention was ordered by a prosecutor on 17/02/2003, was not brought before a judge promptly but only after 8 days (violation of Article 5§3).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 000 EUR

600 EUR

2 600 EUR

Paid on 10/12/2010

b) Individual measures

The applicant was released on 17/07/2003.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The general measures taken by the Romanian authorities are presented in Final Resolution CM/ResDH(2011)149 adopted in the case of Năstase-Silivestru against Romania (judgment of 04/10/2007).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24879

Execution of the judgment of the European Court of Human Rights
Ionescu and Mihaila against Romania

(Application No. 36782/97, judgment of 14 December 2006, final on 14 March 2007)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the lack of access to a court in order to claim the restitution of a nationalised building (violation of Article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)248

Information about the measures to comply with the judgment in the case of
Ionescu and Mihaila against Romania

      Introductory case summary

This case concerns a violation of the applicants’ right of access to a court in that the Bucharest Court of Appeal concluded in 1996 that the courts were not competent to deal with their claim for restitution of property which had been nationalised in 1950 (violation of Article 6, paragraph 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

10 000 EUR

200 EUR

10 200 EUR

Paid on 10/07/2007 (in conditions that seem to be accepted by the applicants)

b) Individual measures

Article 322 § 9 of the Romanian Code of Civil Procedure provides the possibility of reopening civil proceedings in cases in which the European Court has found a violation of the Convention.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

This case presents similarities to that of Canciovici and others against Romania (Resolution CM/ResDH(2008)79), in which the Romanian authorities indicated that changes made to the legislation and case-law recognised the right of access to a court for former owners of nationalised property.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)24980

Execution of the judgment of the European Court of Human Rights
Weissman and others against Romania

(Application No. 63945/00, judgment of 24 May 2006, final on 23 October 2006)

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

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

Recalling that the violations of the Convention found by the Court in this case concern lack of access to a court and the breach of the applicant's rights to peaceful enjoyment of their possession (violations of Article 6, paragraph 1, and Article 1 of Protocol No. 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)249

Information about the measures to comply with the judgment in the case of
Weissman and others against Romania

      Introductory case summary

This case concerns the violation of the applicants' right of access to a court due to excessive court fees required for initiating domestic proceedings (violation of Article 6§1).
The applicants' action seeking reimbursement of rent for their building, collected by the state, had been annulled, in 2000, by the domestic courts, on the ground that they had failed to pay the court fees required for bringing the proceedings.
The European Court found that the amount in question (namely the equivalent of 323 264 EUR), calculated on the basis of a set percentage laid down by law of the sum at stake in the proceedings, was justified neither by the particular circumstances of the case nor by the applicants' financial situation. Since the amount claimed from the applicants in order to lodge their action was excessive, they were implicitly obliged to abandon the action, which deprived them of the right to have their case heard by a court. The European Court also noted that, according to the Court Fees Act (Law No. 146/1997) in force at the material time, the exemption from court fees could have been granted by the Ministry of Finance, which was a party to the proceedings. No judicial review of the decision of the Ministry of Finance was guaranteed.

The case also concerns a violation of the applicants' right to the peaceful enjoyment of their possessions, resulting from the impossibility to claim the restitution of the rent collected by the state before the domestic courts (violation of Article 1 of Protocol No. 1). In this respect, without speculating on the outcome of the proceedings on reimbursement, had the applicants’ claim been examined on the merits, the Court considered that the applicants could have argued they had a “legitimate expectation” that at least part of their claim would be determined in conformity with the provisions of the Civil Code and the case-law of the Supreme Court of Justice. Yet the annulment of their action for failure to pay court fees suppressed in practice any chance for the applicants to obtain the reimbursement of the rent at stake.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

40 000 EUR

-

-

40 000 EUR

Paid on 17/04/2007 (in conditions that seem to be accepted by the applicants)

b) Individual measures

The European Court awarded the applicants jointly just satisfaction for pecuniary damage resulting from the lack of compensation for the use of their building by the state.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

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

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25081

Execution of the judgment of the European Court of Human Rights
Dragotoniu and Militaru-Pidhorni against Romania

(Applications Nos. 77193/01 and 77196/01, judgment of 24 May 2007, final on 24 August 2007)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the criminal conviction of the applicants for acts which did not constitute a criminal offence under the national law in force at the material time (violation of Article 7, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)250

Information about the measures to comply with the judgment in the case of Dragotoniu and Militaru – Pidhorni against Romania

      Introductory case summary

This case concerns the criminal conviction of the applicants for acts which did not constitute a criminal offence under the national law in force at the material time (violation of Article 7, paragraph 1).

The applicants, private-sector employees, were convicted and sentenced to immediate imprisonment sentences for accepting bribes, at final instance in 2000. According to the wording of the Criminal Code at the material time, such offence could only be committed by a public servant or a person working for a state-owned company. The European Court noted that the domestic courts deliberately construed the relevant provisions of the Criminal Code in an extensive manner, to the applicants’ detriment. Prior to the applicants’ conviction, the domestic courts had never ruled that accepting bribes by employees of privately-owned companies constituted a criminal offence. It had therefore been impossible for the applicants to predict this departure from precedent and to know, at the time when they committed the acts at issue, that they might give rise to criminal sanctions.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

6 000 EUR

-

6 000 EUR

Paid on 10/12/2007 (Mr. Militaru – Pidhorni) and 27/12/2007 (Mr. Dragotoniu) (the applicants waived interests)

b) Individual measures

Based on the European Court's judgment, the applicants requested the reopening of the proceedings under Article 408¹ of the Code of Criminal Procedure. The High Court of Cassation and Justice allowed the reopening and acquitted the applicants upon retrial. Thereafter, the applicants lodged a claim under Article 504, paragraph 1, of the Code of Criminal Procedure, seeking redress for their unlawful conviction and deprivation of liberty. In these circumstances, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The violation found by the European Court in this case appears to be of an isolated nature, as it stems from an unforeseeable and extensive interpretation of criminal-law provisions by the domestic courts, to the applicants’ detriment. Under Romanian law, the principle of the statutory nature of offences and penalties (nullum crimen, nulla poena sine lege praevia) prohibits the extensive application of criminal-law provisions to the detriment of the accused.

Having regard to the above, raising the domestic courts’ awareness to the requirements of the Convention in this field as set forth by the European Court’s judgment seems to be an appropriate measure to prevent similar violations. To that effect, the Romanian translation of the European Court’s judgment was published in Official Journal No. 420 of 23 June 2010 and the judgment was sent out to domestic courts. Moreover, the European Court’s case-law is regularly presented and discussed during initial and continuous training of magistrates.

III. Conclusions of the respondent state

The government considers that no further individual measures are required in this case, that the general measures adopted will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25182

Execution of the judgment of the European Court of Human Rights
Spînu against Romania

(Application No. 32030/02, judgment of 29 April 2008, final on 29 July 2008)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the unfairness of certain criminal proceedings against the applicant (violation of Article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)251

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

      Introductory case summary

This case concerns the unfairness of criminal proceedings which resulted in the applicant’s conviction on charges inter alia of being an accessory to robbery with violence resulting in the victim’s death (violation Article 6, paragraph 1).

In 2000, the Supreme Court of Justice convicted the applicant on appeal (recurs) in proceedings which entailed three levels of jurisdiction. The applicant had been previously acquitted on appeal (apel) against her conviction at first instance. In the specific circumstances of the case, the Supreme Court of Justice, endowed with full jurisdiction, was called upon essentially to determine issues of fact, namely whether the applicant had participated in the crime she was charged with. However, the Supreme Court reversed the applicant’s acquittal by the appellate court without taking any evidence.

The European Court noted that the Supreme Court based its verdict on a fresh assessment of successive statements made by the applicant and one of her co-accused during the proceedings, without taking evidence from them in person. The same statements had however given rise to conflicting decisions of the lower courts as to the applicant’s guilt. Against this background, the European Court held that as a matter of fair trial, the Supreme Court could not overturn the applicant’s acquittal without a direct assessment of the evidence given in person by her and by her co-accused.

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 000 EUR

-

5 000 EUR

Paid on 27/11/2008 (in conditions that seem to be accepted by the applicant)

b) Individual measures

The European Court noted that the applicant had been released on probation on 14 April 2004 (paragraph 37 of the judgment). On 23 March 2009, the applicant’s request for the reopening of the proceedings lodged under Article 4081 of the Code of Criminal Procedure was allowed. Upon retrial, the Supreme Court of Justice heard evidence from the applicant and summoned the applicant’s co-accused to testify as a witness; however, the latter refused to testify. The Supreme Court of Justice upheld the applicant’s conviction.

In the circumstances presented above, no other individual measure was considered necessary by the Committee of Ministers for the execution of the judgment in this case.

II. General measures

As regards the failure of the Supreme Court to hear evidence from the applicant in person, the government referred to the measures that had been taken to avoid similar violations following the judgment in the case of Constantinescu, as set out in CM/ResDH(2011)29 (in particular the amendments made by Law No. 356/2006 to the provisions of the Code of Criminal Procedure on the examination of accused persons).

As for the failure of the Supreme Court of Justice to take evidence in person from the applicant’s co-accused, it should be noted that the situation in this case was specific since the Supreme Court of Justice was called upon to rule on the charges after the lower courts had reached diverging conclusions as to the applicant’s guilt. In such circumstances, article 38515, paragraph 2 a) of the Code of Criminal Procedure allows the court of last instance to quash the appellate court’s decision and uphold the judgment given by the court of first instance without formally compelling the court of last instance to hear evidence, even where the matters of conflict between the lower courts are of factual nature.

However, given the direct effect of the Convention and the Court's case-law in Romanian law, it may be assumed that the domestic courts will be guided in their interpretation of the domestic law by the requirements resulting from the European Court’s judgment case.

In order to raise awareness of such requirements, the Romanian translation of the judgment was published in Official Journal No. 720 of 21 November 2008 and on the websites of the High Court of Cassation and Justice http://www.scj.ro/decizii_strasbourg.asp) and the Supreme Council of Magistracy (http://www.csm1909.ro/csm/index.php?cmd=9503). Moreover, the European Court’s case law is regularly presented and discussed during the initial and continuous training of magistrates.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25283

Execution of the judgment of the European Court of Human Rights
Dănilă against Romania

(Application No. 53897/00, judgment of 8 March 2007 final on 8 June 2007)

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

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

Recalling that the violations of the Convention found by the Court in this case concern the unfairness of criminal proceedings brought against the applicant (violations of Article 6, paragraphs 1 and 3 (d)) (see details in Appendix);

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

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

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)252

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

Introductory case summary

This case concerns the unfairness of criminal proceedings which resulted in the applicant’s conviction on charges of accepting bribes (violations of Article 6, paragraphs 1 and 3 (d)).

In 1998, the Supreme Court of Justice overturned the applicant’s previous acquittal by two lower courts and convicted him at last instance. In the particular circumstances of the case, the Supreme Court of Justice had full jurisdiction and was called uponto make a full assessment of the question of the applicant’s guilt or innocence”. Nevertheless, the Supreme Court returned its verdict without hearing evidence from the applicant and without taking further evidence.

The European Court noted that the applicant’s conviction at last instance was founded on a fresh assessment of the same evidence which had supported his acquittal by the lower courts. Against this background, having regard in particular to the lower courts’ verdicts, as a matter of fair trial, the Supreme Court of Justice could not overturn the applicant’s acquittal without a direct assessment of the evidence given by the applicant in person and of other evidence, in particular the statements given by the main prosecution witness.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3 000 EUR

-

3 000 EUR

Paid on 5/09/2007

b) Individual measures

The European Court noted that the applicant had been released on probation on 13 December 2002 (paragraph 24 of the judgment). Based on the European Court’s judgment, the applicant lodged an application to reopen the proceedings under Article 408¹ of the Code of Criminal Procedure. The High Court of Cassation and Justice allowed the reopening. Upon retrial, after having taken evidence in person from the applicant, the main prosecution witness and other witnesses, the domestic courts dismissed the charges against the applicant on grounds that statute of limitation in respect of the offences he was charged with had expired.
In these circumstances, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

As regards the failure of the Supreme Court of Justice to hear evidence from the applicant in person, the government referred to the measures that had been taken to avoid similar violations following the judgment in the case of Constantinescu, as set out in CM/ResDH(2011)29 (in particular the amendments made to the provisions of the Code of Criminal Procedure regulating the examination of accused persons by Law No. 356/2006).

As for the failure of the Supreme Court of Justice to take further evidence, the violation found in this case appears to stem from the misapplication of the procedural rules governing final appeal proceedings and not from an inadequate legal framework. Indeed, under Article 38516 of the Code of Criminal Procedure, if the appellate court withholds the case for retrial (rejudecarea de către instanţa de recurs), it must schedule a full hearing and decide on the evidence to be taken at the new hearing.

In order to ensure that the domestic courts will give full effect to the procedural rules disregarded in this case and to the requirements of Article 6, paragraphs 1 and 3 (d) set forth by the judgment, awareness-raising measures were taken. Thus the Romanian translation of the judgments of the European Court was published on the websites of the High Court of Cassation and Justice http://www.scj.ro/decizii_strasbourg.asp) and the Supreme Council of Magistracy (http://www.csm1909.ro/csm/index.php?cmd=9503). Moreover, the European Court’s case-law is regularly presented and discussed during initial and continuous training of magistrates.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25384

Execution of the judgment of the European Court of Human Rights
Deak against Romania

(Application No. 42790/02, judgment of 4 November 2008, final on 6 April 2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the applicant’s right to access to a court due to the misapplication of the relevant legal provisions by the domestic courts (violation of article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)253

Information about the measures to comply with the judgment in the case of
Deak against Romania

      Introductory case summary

This case concerns a breach of the applicant's right of access to a court caused by the domestic courts’ misapplication of the admissibility rules in proceedings before administrative courts (violation of Article 6, paragraph 1).
The applicant sought judicial review of an administrative decision establishing the amount of her retirement pension. In May 2002, the applicant’s request for review was dismissed as inadmissible at last instance, on the ground that under Law No. 3/1977 on the pension rights, in force at the material time, the administrative decision at issue was not subject to judicial review.
The European Court noted however that this law had been amended in 1991 to allow the judicial review of such decisions and concluded that the applicant’s request had been erroneously rejected as inadmissible, which amounted to a violation of the applicant's right of access to a court.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 500 EUR

-

2 500 EUR

Paid on 23/06/2009

b) Individual measures

Article 322, paragraph 9, of the Romanian Code of Civil Procedure provides the possibility of reopening civil proceedings in cases in which the European Court has found a violation. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. In these circumstances, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The government considers that the violation found in the instant case is of an isolated nature as it stems from the misapplication of the relevant procedural rules by the domestic courts and not from inadequate legislation.

In addition, it should be noted that Law No. 3/1977 was repealed and replaced by Law No. 19/2000 on the retirement rights and the new law equally provides that the administrative decisions establishing the amount of the retirement pensions are subject to judicial review.

A summary of the European Court's judgment was published in the Reports of the European Court’s judgments between 1994 and 2009 and the judgment was sent to the Superior Council of Magistracy for dissemination to all domestic courts. It should be noted moreover, that the European Court’s case-law is regularly presented and discussed during the initial and continuing training of the magistrates.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25485

Execution of the judgment of the European Court of Human Rights
Iosif and others against Romania

(Application No. 10443/03, judgment of 20 December 2007, final 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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns: the lack of access to a court due to the excessive amount of security required to bring an action to cancel a mortgage agreement (violation of article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)254

Information about the measures to comply with the judgment in the case of
Iosif and others against Romania

      Introductory case summary

This case concerns the violation of the applicants' right of access to a court due to the dismissal of their action by the domestic courts in 2003 for non-payment of a security deposit of almost 134 000 EUR required to bring the action (violation of Article 6§1).
The applicants’ action was related to the cancellation of the mortgage they had taken out on their house to guarantee a loan granted to a third party. The competent court reclassified this action as an objection to the enforcement of the mortgage and dismissed it for non-payment of the fixed security deposit representing 20% of the secured loan.
The European Court noted that the obligation to pay an excessively high deposit to bring the action in question deprived the applicants of the possibility of having their case examined on the merits (§60 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

-

5 000 EUR

2 500 EUR

7 500 EUR

Paid on 27/06/2008 (in conditions that seem to be accepted by the applicants)

b) Individual measures

Article 322, paragraph 2, of the Romanian Code of Civil Procedure provides the possibility of reopening civil proceedings in cases in which the European Court has found a violation. In addition, the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. In these circumstances, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The provision of government emergency ordinance No. 51/1998 which provided the obligation to pay a fixed security deposit to introduce an action against enforcement proceedings was declared unconstitutional by decision No. 39 of 29/01/2004. The Romanian government indicated that the provision in question is no longer in force. At present, objection to enforcement proceedings in similar cases is regulated by the provisions of the Code of Civil Procedure. According to the relevant provisions of the Code, the introduction of an action against enforcement proceedings does not require the payment of a security deposit.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25586

Execution of the judgments of the European Court of Human Rights
Hauler and Stancu against Romania

(Hauler, application No. 67703/01, judgment of 12 July 2007, final on 12 October 2007 and
Stancu, application No. 30390/02, judgment of 29 April 2008, final on 29 July 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 infringement of the applicants' right of access to a court due to the Court's refusal to review the lawfulness of administrative decisions concerning the allocation of plots of land and 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 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 noted that the issue concerning the excessive length of civil proceedings, raised in the Stancu case, is examined at present within the framework of the supervision of the execution of the group of cases Nicolau against Romania (judgment of 12 January 2006);

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)255

Information on the measures taken to comply with the judgments in the cases of
Hauler and Stancu against Romania

      Introductory case summary

The cases concern the violation of the applicants’ right of access to a court due to the domestic courts’ refusal, between 1997 and 2001, to review the lawfulness of administrative decisions concerning the allocation of plots of land. The Stancu case concerns also the excessive length of civil proceedings (violations of Article 6§1)

      I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary and non-pecuniary damage

Costs and expenses

Total

Hauler (67703/01)

4 000 EUR

500 EUR

4 500 EUR

Paid on 28/05/2008 (in conditions that seem to be accepted by the applicant)

Stancu (30390/02)

10 000 EUR

1 000 EUR

11 000 EUR

Paid on 11/11/2008 (the applicants waived interest in view of small amount)

b) Individual measures

Article 322§9 of the Code of Civil Procedure provides the possibility of reopening civil proceedings in cases in which the European Court has found a violation. In addition, the European Court awarded the applicants just satisfaction in respect of all heads of damage. Finally, the civil proceedings which the European Court had held to be excessively long in the Stancu case came to an end in 2001.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

1) Access to court: The cases present similarities to the Glod case (Resolution CM/ResDH(2011)25), in which the Committee of Ministers noted that the legal provision that limited the jurisdiction of courts called upon to review the lawfulness of administrative decisions concerning the restitution of land was repealed in 1997. In the Stancu case, the European Court noted that following this legislative amendment, the great majority of the domestic courts decided that they were competent to examine the lawfulness of such administrative decisions. Nevertheless, in the present cases, the courts of appeal declined jurisdiction, in 2000 and 2001, to review such administrative decisions. This being the case and in view of the direct effect of the European Convention in Romania, the Romanian authorities considered that it was necessary to disseminate the judgment of the European Court in the Hauler case to the competent courts to avoid any new, similar inconsistency. Thus, the judgment was sent to the Superior Council of Magistracy, with a view to its dissemination to all domestic courts, with a recommendation to discuss this judgment during activities related to continuous professional education of judges. In addition, the Court’s judgments in these cases, as the judgment in the Glod case, have been published in the Official Journal.

2) Length of proceedings: This aspect is being examined in the context of the Nicolau group of cases (1295/02).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25687

Execution of the judgment of the European Court of Human Rights
Bujac against Romania

(Application No. 37217/03, judgment of 2 November 2010, final on 2 February 2011)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the unlawful detention of the applicant between August 2002 and May 2003, following an order of the domestic court prolonging his detention on remand without specifying its duration (violation of article 5, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)256

Information about the measures to comply with the judgment in the case of
Bujac against Romania

      Introductory case summary

The case concerns the unlawful detention of the applicant from 09/08/2002 to 21/05/2003, in that the order of the competent court of 10/07/2002 prolonging his detention on remand did not specify its duration, contrary to domestic law as interpreted by the Constitutional Court (violation of Article 5§1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

8 000 EUR

50 EUR

8 050 EUR

Paid on 12/04/2011

b) Individual measures

The European Court noted that the applicant had been convicted and the period of detention on remand had been deducted in its entirety from his sentence. He was released on parole on 26/05/2004.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The general measures taken by the Romanian authorities are presented in Final Resolution CM/ResDH(2011)22adopted in the case of Konolos against Romania (judgment of 07/02/2008).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25788

Execution of the judgment of the European Court of Human Rights
Savu against Romania

(Application No. 19982/04, judgment of 4 November 2008, final on 4 February 2009)

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

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

Recalling that the violations of the Convention found by the Court in this case concern the quashing of final court decisions by the Supreme Court following an application for nullity (recurs in anulare) lodged by the Procurator General (violations of Article 6, paragraph 1 and Article 1 of Protocol No. 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)257

Information about the measures to comply with the judgment in the case of
Savu against Romania

      Introductory case summary

This case concerns the quashing of final court decisions by the Supreme Court, in 2004, following an application for nullity lodged by the Procurator General under Article 330 and Article 3301 of the Code of Civil Procedure (violations of Article 6, paragraph 1 and Article 1 of Protocol No. 1). The decisions quashed granted the applicant a plot of land of 293 m² in exchange for the payment of a sum to the other parties to the proceedings.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3 000 EUR

300 EUR

3 300 EUR

Paid on 30/04/2009

b) Individual measures

The applicant lodged a request with the European Court for just satisfaction in respect of the pecuniary and non-pecuniary damage caused by the violations of Article 6§1 and Article 1 of Protocol No. 1. The Court considered that the request concerning the alleged damage caused by the lack of enjoyment of the plot of land of 293 m² had not been proved. The Court considered that it fell to the authorities to take the necessary measures with a view to placing the applicant in a situation similar to that in which he would have been had the requirements of Article 6§1 of the Convention and Article 1 of Protocol No. 1 not been violated by the delivery of the decision of the Supreme Court of Justice in extraordinary appeal proceedings. In conclusion, the Court awarded the applicant an amount in respect of non-pecuniary damage.
Following the judgment of the European Court, the applicant lodged a request for review of the decision of the Supreme Court of Justice by which the final court decisions in his favour had been quashed. The High Court of Cassation and Justice granted the request and re-examined the case. By a final decision of 17 October 2011, it dismissed the extraordinary appeal lodged at the time by the Procurator General. Consequently, the decisions in favour of the applicant regained their binding force.

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

      II. General measures

The government referred to the measures that had been taken to avoid new similar violations, as set out in Resolution CM/ResDH(2007)90 (in particular the fact that Articles 330 and 330¹ of the Code of Civil Procedure were repealed by Article 1 §17 of Emergency Ordinance No. 58 of 25/06/2003 passed by the government, published in the Official Journal on 28/06/2003, which received parliamentary approval on 25/05/2004).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25889

Execution of the judgment of the European Court of Human Rights
Bartos against Romania

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”)90,

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

Case name (App. No.)

Judgment of

Final on

Bartos (12050/02)

20 July 2006

20 October 2006

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)258

Information about the measures to comply with the judgment in the case of
Bartos against Romania

Action Report
Bartoş v. Romania
(Application No. 12050/02, judgment of 20 July 2006, final on 20 October 2006)

I. Introductory case summary

This case concerns the annulment by the Supreme Court of Justice, in 2002, of a final judgment, following an application for nullity by the Procurator General under Articles 330 and 3301 of the Code of Civil Procedure (violations of Article 6, paragraph 1, and of Article 1 of Protocol No. 1).

II. Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

Where pecuniary damage is concerned, it should be pointed out that the decision subsequently annulled by the Supreme Court of Justice ordered the applicant's tenants to pay her certain sums, which were effectively received by the applicant. Following the annulment of this judgment, it was the applicant who was ordered to pay certain sums to the tenants. Since the forced execution procedure against the applicant was discontinued following the Court's judgement, the Government considers that no negative consequence of the violation found remains for the applicant.

Furthermore, it should be noted that, following the judgement of the European Court, the applicant lodged, in November 2010, an application for review of the decision of the Supreme Court of Justice of 2002 which had annulled the final judgement delivered in her favour. The High Court of Cassation and Justice allowed her application and, in a final judgement of 22 June 2011, annulled the decision of the Supreme Court of Justice of 2002.

III. General measures

The government referred to the measures that had been taken to avoid similar violations, as set out in Resolution CM/ResDH(2007)90 (in particular the fact that Articles 330 and 330¹ of the Code of Civil Procedure were repealed by Article 1 §17 of Emergency Ordinance No. 58 of 25 June 2003 passed by the government, published in the Official Journal on 28 June 2003, which received parliamentary approval on 25 May 2004).

IV. Conclusions

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)25991

Execution of the decisions of the European Court of Human Rights
3 cases against Romania

Case, Application No.

Date of decision

Ene, application No 26156/07

11/01/2011

Ureche, application No 37110/06

18/01/2011

Bădilă, application No 45201/08

22/03/2011

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly settlements were executed by the respondent State,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close their examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)26092

Execution of the judgment of the European Court of Human Rights
Marian Niţă against Romania

(Application No. 28162/05, judgment of 7 December 2010, final on 7 March 2011)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the principle of legal certainty as a result of the annulment by the High Court of Cassation and Justice of a final judgment acquitting the applicant, following an application for nullity lodged by the Procurator General (violation of Article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)260

Information about the measures to comply with the judgment in the case of
Marian Niţă against Romania

      Introductory case summary

This case concerns the unfairness of criminal proceedings resulting from the annulment of a final judgment by the High Court of Cassation and Justice in 2005, following an application for nullity lodged by the Procurator General (violation of Article 6§1).
The applicant was acquitted by a final judgment of 07/10/2003. Following the annulment of this judgment, he was convicted of the crime of non-assistance of a person in danger and sentenced to two years' imprisonment, which was subject to a pardon.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

4 000 EUR

1 150 EUR

5 150 EUR

Paid on 20/05/2011

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage suffered.
Following the judgment of the European Court, the applicant lodged a request for review of the decision of the High Court of Cassation and Justice by which the final decision of 07/10/2003 has been quashed, in conformity with Article 4081 of the Code of Criminal Procedure. The High Court of Cassation and Justice granted the request and re-examined the case. By a final decision of 07/11/2011, it dismissed the application for nullity lodged at the time by the Procurator General. Consequently, the decision of 07/10/2003 regained its binding force in respect of the applicant.
In view of the above, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The general measures taken by the Romanian authorities are presented in the Final Resolution CM/ResDH(2011)27 adopted in the cases of Bota, Sergiu Popescu and Precup against Romania (judgments of 04/11/2008, 16/12/2008 and 27/01/2009).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)26193

Execution of the judgment of the European Court of Human Rights
Vanessa Tierce against San Marino

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”)94,

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

Case name (App. No.)

Judgment of

Final on

Vanessa Tierce (69700/01)

17/06/2003

3/12/2003

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)261

Information about the measures to comply with the judgment in the case of
Vanessa Tierce against San Marino

ORIGINAL FRENCH

ACTION REPORT BY THE GOVERNMENT OF SAN MARINO
ON THE EXECUTION OF THE JUDGMENT

69700/01 Vanessa Tierce, judgment of 17 June 2003, final on 3 December 2003

The applicant is a French citizen who complained of the excessive duration of certain civil proceedings (violation of Article 6§1). The Court observed that the reason for the length of the proceedings was principally the complexity of civil procedure in San Marino, characterised by the requirement to respect a number of procedural stages and by the limited power of civil judges in case of inactivity by the parties.

On 12 September 2003, the Government moved to refer the case to the Grand Chamber of the Court. The committee of five judges of the Grand Chamber decided on 3 December 2003 not to accede to the request and accordingly the judgment of 17 June 2003 became final on 3 December 2003.

Individual measures

Just satisfaction: payment to the applicant of the just satisfaction, fixed by the Court at € 2500 in respect of non-pecuniary damage, was made within the time-limit set that is, on 3 March 2004 (accredito con valuta 3 marzo 2004). The Court granted no just satisfaction in respect of pecuniary damage or costs (§36 of the Court’s judgment of 17 June 2003).

The proceedings are closed. No further individual measure is necessary.

General measures

Concerning the length of proceedings (violation of Article 6§1), the Government has informed the Department for the Execution of Judgments of the measures adopted to avoid similar violations (memorandum by the Principal Magistrate of the Tribunal of San Marino of 20 April 2011).

Statistical analysis
In the document mentioned, the Tribunal presents a statistical analysis covering several years, from 2004 to 2010. The official data demonstrates, in particular, that the percentage of proceedings completed (including those opened in preceding years) has undergone a progressive increase compared with civil proceedings presented in the course of the year of reference. It is thus possible to confidently deduce an increase in the “productivity” of civil judges in the course of the years under examination. This implies increased efficiency of the San Marino judicial system following the measures adopted, particularly Law No. 145 of 28 October 2005, adopted following the Court’s judgment in this case and on the basis of guidelines drawn up by a Commission established by decision of the national Parliament on 30 June 2004. This Law is part of a series of measures which have undoubtedly improved the system, making it more efficient with regard to the promptness of civil judgments.

Legislative reform of 28 October 2005
Law No. 145 of 28 October 2005, mentioned above, brought in procedural and organisational changes to the judicial system which influenced the trial process with a view to shortening it. Procedurally speaking, the most important change concerns the lapse of the time allotted to a court to deal with a case (perenzione d’instanza, Article 2 of the Law) which is no longer declared only at the request of a party, but which is now provided by law and must be declared by the judge. In such cases the judge is therefore required to state this fact, thus considerably limiting parties’ power to draw proceedings out. In precise terms, the lapse occurs if no judgment is pronounced within 90 hearings from the beginning of the dispute. A statement of lapse does not extinguish the civil action; it merely annuls the action taken by the court in question, rendering the judicial acts performed without effect. It is thus possible to present it before a fresh court, provided that is has not become time-barred in the meantime.

It is no longer possible for parties to prolong cases through inactivity and such inactivity, if established, is punished by the ineffectiveness of all judicial actions completed during the proceedings. Under the new rules, the lapse of the allotted time is more efficient than previously because it is the judge who declares it ex officio.

As regards judicial organisation, Articles 3 and 4 of the Law of 2005 have lightened the workload of the Law Commissioners by doubling the sum for which judge-mediators may be competent to € 50 000, and by giving appeal judges competence to judge appeals against decisions of judge-mediators at second instance, thus eliminating the competence for re-examination formerly attributed by precedence to the Law Commissioners in such cases. The reduction in the Commissioners’ case-load through this redistribution of competence to other magistrates clearly responds to the need for a guaranteed reduction of the duration of civil proceedings.

The Court’s judgment was translated into Italian and published ad valvas palatii (“on the palace doors”) i.e. the usual practice, as indicated by a memorandum from the Department of Internal Affairs of 8 April 2011.

* * *

In the light of this information, the Government considers that it has taken the measures necessary and that accordingly the phase of execution of this judgment should be closed as soon as possible.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)26295

Execution of decisions of the European Court of Human Rights
11 cases against Serbia

Case, Application No.

Date of decision

Ćirović, application No. 33098/07

09/10/2010

Đenić, application No. 48181/06

12/10/2010

Dimitrijević, application No. 48166/06

12/10/2010

Pešić, application No. 3759/08

09/11/2010

Probojčević, application No. 37015/07 

28/09/2010

Radojković, application No. 47993/06 

12/10/2010

Rančić, application No. 40400/07 

28/09/2010

Savić, application No. 25375/08 

28/09/2010

Stevanović, application No. 32706/08 

28/09/2010

Žigić, application No. 30775/08

12/10/2010

Zlajić, application No. 22111/07

12/10/2010

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly-settlements were executed by the respondent State,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close their examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)26396

Execution of the judgment of the European Court of Human Rights
Bíro against the Slovak republic

(Application No. 57678/00, judgment of 27/06/2006, final on 27/09/2006)

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

Having regard to the judgment transmitted by the Court to the Committee once it had become final,
and following the Court’s finding of violations of the Convention in this case;

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 further satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment,

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

      DECIDES to close its examination.

* * *

Appendix to Resolution CM/ResDH(2011) …

Information on the Bíro case against the Slovak republic

Application N°

Case name

Date of judgment

Date of final judgment

Decision to close

57678/00

Bíro

27/06/2006

27/09/2006

997th meeting
July 2007

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)26497

Execution of the judgment of the European Court of Human Rights
Lexa against the Slovak Republic

(Application No. 54334/00, judgment of 23 September 2008, final on 23 December 2008)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns a violation of the applicant’s right to liberty and security, on account of his unlawful detention on remand in 1999 (violation of Article 5, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)264

Information about the measures to comply with the judgment in the case of
Lexa against the Slovak Republic

      Introductory case summary

This case concerns a violation of the applicant’s right to liberty and security, on account of his unlawful detention on remand in 1999 (violation of Article 5§1). The applicant, previously Director of the Slovakian Information Service (the Slovakian intelligence service - Slovenská informačná služba), was suspected of involvement in the abduction in 1995 of the son of the then Slovakian President. Two amnesty decrees related to the abduction were promulgated by the Prime Minister on 03/03/1998 and 07/07/1998. On 08/12/1998, the new Prime Minister revoked the amnesties given by his predecessor. In April 1999 the police investigator98 brought criminal proceedings against the applicant and he was detained on remand on 15/04/1999, being released on 19/07/1999.

Referring to a Supreme Court decision of 2002, the European Court held that the amnesties granted on 03/03/1998 and 07/07/1998 covered the offences for which the applicant had been prosecuted. The European Court noted that any criminal liability arising from the action at issue had therefore been extinguished by the decision on amnesty of 03/03/1998. The applicant's subsequent prosecution was therefore not permissible under domestic law, and so the applicant's detention could not be considered “in accordance with a procedure prescribed by law” (§142 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

-

-

8 000 EUR

8 000 EUR

Paid on 2 March 2009

b) Individual measures

The applicant was released on 19/07/1999. The European Court considered that the finding of the violation constituted sufficient just satisfaction in respect of the non-pecuniary damage suffered. Consequently, no further individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The violation in this case relates to particular factual circumstances and appears to be of an isolated nature. Therefore, the European Court's judgment was translated into Slovak and published in Justičná Revue No.12/2008, in accordance with the Slovakian authorities’ practice on publication. On 06/04/2009 the judgment was distributed to all regional courts and to the Supreme Court under cover of a circular sent from the Minister of Justice. The presidents of regional courts and the President of the Criminal Divisions of the Supreme Court were asked to notify the judgment to all judges within their jurisdiction dealing with criminal cases.

In relation to the general context of the violation, the European Court recalled that “where a State agent is charged with crimes involving torture or ill-treatment, it is of the utmost importance that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible” (§139 of the judgment). However, the Court also noted the legislative amendments made subsequent to the facts in this case “such as the modification of the scope of the President's powers to issue measures of individual clemency” (§140 of the judgment). Since 01/07/2001, paragraph 2 of Article 102 of the Constitution has provided that a decision on amnesty made by the President is valid subject to its signature by the Prime Minister or another minister whom the latter has authorised (§66 of the judgment).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)26599

Execution of the judgment of the European Court of Human Rights
Muñoz Diaz against Spain

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”)100,

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

Case name (App. No.)

Judgment of

Final on

Muñoz Diaz (49151/07)

8/12/2009

8/03/2010

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)265

Information about the measures to comply with the judgment in the case of
Muñoz Diaz against Spain

ACTION REPORT101

CASE: MUÑOZ DÍAZ against Spain
APPLICATION No.: 49151/07
JUDGMENT DATE: 8/12/2009
DATE OF TRANSMISSION FOR EXECUTION: 8/03/2010

ORIGINAL FRENCH

CIRCUMSTANCES OF THE CASE: The European Court considered that there had been a violation of Article 14 of the Convention (prohibition of discrimination) in conjunction with Article 1 of Protocol No. 1 (right to the peaceful enjoyment of possessions) on the ground that entitlement to receive Spanish social security benefits constituted a proprietary right for the purposes of the Convention. The Court considered that in the present case the application for a reversionary pension had been dealt with differently in comparison with equivalent cases and that neither the applicant’s good faith nor her membership of the Roma minority, nor the special circumstances existing at the time of her marriage according to the Roma rite had been taken into account.

The Court did not find a violation of Article 14 in connection with Article 12 (right to marry) (paragraph 79 of the judgment). Thus the absence of recognition of the marriage according to the Roma rite did not infringe Articles 12 or 14 of the Convention.

(1) INDIVIDUAL MEASURES

The applicant’s right to the reversionary pension has been recognised since 1 January 2007 pursuant to Law No. 40/2007, supplementary provision 3° of 4 December, in her capacity as “de facto spouse”.

The judgment has also been disseminated and published.

Spain considers no other individual measures are necessary.

(2) GENERAL MEASURES

The European court notes in its judgment that this case concerns an accumulation of particular circumstances (paragraph 69) and that the law had been amended to respond to such situations (paragraph 30). Law No. 40/2007, supplementary provision 3, recognises the right to a reversionary pension in circumstances where “the beneficiary would have led an uninterrupted life in common, as a de facto couple according to the conditions provided in Article 174.3, paragraph 4, sub-paragraph 1 of the “General Law on Spanish Social Security, in the wording provided by Article 5 of the present Law, with the person in whom the right is vested for a minimum of six years before the latter’s decease”.

A transitional legal provision (third supplementary provision) was added to this amendment so as to allow persons not entitled to a pension to apply for it within 12 months of the entry into force of Law 40/2007.

As the Court recognised, there is already a law (tenth additional provision to Law 40/2007) as well as constitutional case-law, which takes into account good faith and exceptional circumstances in decisions on the right to a reversionary pension (Paragraphs 26, 32 and 53).

The Judgment has been published and disseminated within the judicial system. It has also been widely publicised in the media. A recent judgment by the Social Affaires Chamber of the Extramadura Higher Court of Justice of 22 February 2010 demonstrates this: although the court rejected the applicant’s request, it referred in its reasoning to the present judgment of the European Court, but noted that the applicant had not been in a situation comparable to that of the applicant in Muñoz Díaz.

In the light of the above, Spain considers that it is not necessary to adopt further general measures.

(3) JUST SATISFACTION

Having regard to the period between the death of the applicant’s partner and the said date, the European Court granted just satisfaction of 70 000 EUR in respect of both pecuniary and non-pecuniary damage. It should be highlighted that the applicant’s calculation of the pecuniary damage sustained (i.e. the amount of pension not received between 2000 and 2007) amounted to 53 319,88 EUR. The Court added the sum of 5412,56 EUR for costs and expenses.

These sums were paid to the applicant on 12 April 2010.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)266102

Execution of the judgment of the European Court of Human Rights
Iribarren Pinillos against Spain

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”)103,

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

Case name (App. No.)

Judgment of

Final on

Iribarren Pinillos (36777/03)

8/01/2009

8/04/2009

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)266

Information about the measures to comply with the judgment in the case of
Iribarren Pinillos against Spain

ACTION REPORT104
CASE: IRIBARREN PINILLOS versus SPAIN
APPLICATION Nº: 36777/2003
DATE OF JUDGMENT: 8/1/2009
DATE OF EXECUTION OF JUDGMENT 8/4/2009

ORIGINAL FRENCH

The European Court held that there had been a violation of Articles 3 and 6.1 of the Convention, the latter violation resulting from a failure to comply with the applicant’s right to a hearing within a reasonable time, although the Court acknowledged that the case was somewhat complex.

Article 3 of the Convention was violated as a result of the harm suffered by the applicant during a violent demonstration and of the fact that the remedy to obtain appropriate compensation for the harm suffered was not effective in practice, due to the absence of an effective investigation. The judgment refers to serious and violent skirmishes in the historical neighbourhoods of Pamplona. The demonstrators had formed barricades on the streets and lit fires and the police had been obliged, for hours on end, to use smoke and tear gas grenades (§8). The applicant, who had been taking part in the skirmishes, was seriously injured by a smoke grenade thrown from a short distance by the anti-riot police.

1) INDIVIDUAL MEASURES:

A) Compensation of pecuniary and non-pecuniary damages. The just satisfaction awarded in the judgment includes full compensation for the harm caused to the applicant. In fact, the judgment provides for compensation in respect of:

    - Pecuniary damage, past and future, and compensation in this regard was fixed at 100,000 Euros (§72).
    - Non pecuniary damage, which is assessed at 40,000 Euros (§75).
    - Expenses, which are assessed at 30,000 Euros (§77).

Consequently, the European Court included in the just satisfaction full compensation for each of the aspects for which the applicant sought reparation (pecuniary damage, non-pecuniary damage and expenses). It should be noted that the Court included all damages "both past and future" in its estimation of the pecuniary damages.

Just satisfaction, to the sum of 174,800 Euros, was paid to the applicant on 17/6/2009, as can be seen from the supporting documents already provided.

B) Dissemination of the judgment. As can be seen from the supporting documents provided, the judgment has been disseminated as widely as possible: it was translated into Spanish, forwarded to a large number of judicial bodies and published in the newsletter of the Ministry of Justice. In this way reparation was also made for the moral prejudice suffered.
Spain considers that there is no need to provide for any other type of individual measures given that the judgment provides for compensation for all of the damages suffered.

2) GENERAL MEASURES

A) Dissemination of the judgment. The judgment was widely disseminated to ensure that the persons responsible for applying the law are familiar with the Court’s case-law and avoid such violations in future.

B) With regard to the disproportionate use of force from the standpoint of Article  3 ECHR:

B-1) Regulatory framework:

    - The fact that under Spanish criminal law torture and ill-treatment are considered offences reinforces the protection already imposed by Article 1 of the UN Convention against Torture (Article 173 et seq. of the Criminal Code: torture and other crimes against moral integrity).
    - Spanish legislation governing the "Security Forces and Corps" provides many safeguards to citizen’s rights. Spanish Organic Law 2/1986, of 13 March on Spanish Security Forces ("Fuerzas y Cuerpos de Seguridad") establishes the basic principles governing police interventions. These principles constitute a genuine code governing the activities of all police forces in Spain. The legislation establishes limits for the use of force in general and the use of weapons in particular and stipulates that such use is legitimate only if there is a serious threat to the life or physical integrity of the police or of third parties and that use must always be proportional to the aim, reasonable and exceptional (Article 5).
    - The regulations governing the financial liability of the public authorities stipulates that compensation must be paid to anyone suffering damages, who can prove that there is a causal link between the damage suffered and the functioning, normal or otherwise, of a public service (Article 139 and seq. of the Spanish Law 30/1992, of 26 November on the legal arrangements governing public authorities and administrative procedure).

B-2) Court practice in Spain. The Spanish Constitutional Court has adopted the case-law of the Strasbourg Court concerning the need to conduct exhaustive investigations in cases where there are complaints of ill-treatment by police officers.

In 2008 (therefore after the facts of the case) the Spanish Constitutional Court extended and clarified its case-law with regard to the conduct of investigations in cases of ill treatment – and handed down six judgments on such matters: judgments 34/2008 of 25 February, 52/2008 of 14 April, 63/2008 of 26 May, 69/2008 of 23 June, 107/2008 of 22 September, and 123/2008 of 20 October.

    - The Court underlines “the seriousness of failure to observe this prohibition [torture and ill treatment]105 and the type of judicial action required to ensure compliance with it, given that it is difficult to detect this type of offence and in view of the fact that the preservation of personal integrity and dignity, the main purpose of the prohibition, depends to a very large degree on observance of this principle”.
    - “The right to effective judiciary protection can therefore only be guaranteed in such cases if there is adequate and effective investigation of the elements reported”, which requires “special instructions to ensure that all reasonable lines of investigation are pursued in ascertaining the facts“.106

With regard to the criminal investigation concerning ill treatment, the following rules have been established:

    - “Among other things account shall be taken of the probable absence of evidence in this type of offence, which should encourage the investigation judge to be diligent in ensuring that all possible measures of investigation are actually taken and to apply the principle of burden of proof as sufficient grounds for setting the criminal investigation in motion, given the difficulty for victims to submit evidence in support of their allegations”107
    - “The official status of the persons against whom such allegations are made shall be counterbalanced by firmness on the part of the courts in dealing with any resistance or delay in seeking evidence. Particular care must be taken to seek evidence from outside the institutions concerned”.108
    - It is particularly important that “for the purposes of the investigation there has to be a presumption that any injuries prisoners might have following detention and which did not exist beforehand, are presumed to have been inflicted by the persons responsible for their custody”.109

The case-law of the Constitutional Court with regard to fundamental rights is binding on all judges and courts (Section 5.1 and 7.2 of the Spanish Courts Act.).

B-3) Determined efforts have been made to train state security forces and all judicial staff in human rights and, more specifically, in preventing and detecting ill-treatment. Human rights training is part of not only their initial but also their in-service training.

For example, a working group was set up in 2005 to review police training programmes, mainly from the standpoint of human rights. This work was carried out in co-operation with Amnesty International (AI) to supplement the said training with teaching materials and advice from experts seconded by AI.

The Security State Secretariat (Interior Ministry) adopted decree 12/2007 on the behaviour required from the members of security forces to guarantee the right of persons under detention or under police custody. Pursuant to said decree, national and international provisions on human rights and the use of force have to be part of the initial and in-service training of security forces.

Said specific training is also part of the Human Rights National Plan (measure no. 103), adopted by the Spanish Government on 12 December 2008.

C) With regard to the reasonable length of proceedings: according to the document published by the General Judicial Council, “Key judicial indicators” in 2010 (http://www.poderjudicial.es), and despite the increase in the number of disputes, the average length of proceedings in all of the courts is perfectly reasonable and stable.
In particular, the average length of proceedings in the administrative field (the source of the violation of Article 6.1 in the present case) is as follows:

    - in the court of 1st instance: 15.5 months
    - in the court of 2nd instance: 12.0 months
    - Court of Cassation: 17.5 months

Spain therefore considers that no further general measures with regard to execution of the judgment are necessary as this is an isolated case.

3) JUST SATISFACTION: 174.800 Euros just satisfaction was paid to the applicant on 17/6/2009, as can be seen from the supporting documents already provided.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)267110

Execution of the judgment of the European Court of Human Rights
Diaz Ochoa against Spain

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”)111,

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

Case name (App. No.)

Judgment of

Final on

Diaz Ochoa No 423/03

22/06/2006

22/09/2006

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)267

Information about the measures to comply with the judgment in the case of
Diaz Ochoa against Spain

ORIGINAL FRENCH

ACTION REPORT

CASE: DÍAZ OCHOA against SPAIN
APPLICATION No.: 423/03
JUDGMENT DATE: 22/06/2006
DATE OF TRANSMISSION FOR EXECUTION: 22/09/2006

CIRCUMSTANCES OF THE CASE

This case concerns a violation of the applicant’s right of access to a court (violation of Article 6§1).

In particular, the applicant was not informed of proceedings brought against him in 1991 as co-defendant before Labour Tribunal No. 7 of Valencia, which resulted in his being ordered in 1992 to pay certain sums. The applicant did not become aware of the proceedings until October 1998, when his wages were first seized in payment of the sums owed to the social security (a total of 17.183 EUR). He applied for an order setting aside the judgment against him on the ground that he had not been notified of the proceedings but his application was dismissed as being out of time. The applicant also applied for a review and lodged an amparo appeal, both without success.

The European Court drew attention to the highly unusual combination of events in this case insofar as the applicant had had no reason to suspect that proceedings had been brought against him, as his address was on the case file that had been before the judge on the merits. In addition, the courts seized to set aside the original order or at appeal had failed to remedy the situation caused by the applicant's absence from the main proceedings because of their unduly narrow construction of the law (§ 50 of the judgment).

(1) INDIVIDUAL MEASURES AND JUST SATISFACTION

Applicant’s situation
- 24/10/2006: only a month after the judgment of the European Court became final, and as a result, Social Affairs Court No. 7 of Valencia provisionally suspended the seizure. Up to that date, the sums seized amounted to 7036,39 EUR (5661,20 EUR plus 1375,19 EUR interest).
- 11/04/2008: The social security authorities decided to ask for the execution of the order against the applicant to be stopped.
- 29/05/2008: The Social Affairs Court No. 7 of Valencia pronounced on the request to cease execution and officially ended it.
- 25/11/2008: The social security authorities made a payment in the applicant’s favour for the sum of 7036,39 EUR.

Throughout the administrative and judicial proceedings following the European Court’s judgments, the applicant retained and exercised his right to appeal against decisions adopted by the Spanish administrative and judicial authorities.

This possibility was ultimately realised with the appeal, introduced on 21/01/2009 before the Constitutional Court (CC) against the decision by the Social Affairs Court No. 7 of Valencia of 1992.

This appeal was declared inadmissible by the CC on 9/09/2009 for lack of constitutional relevance of the applicant’s claims.

The judgment was disseminated as widely as possible and published as an additional means of moral redress for the damage sustained.

The European Court granted the sum of 6000 EUR in respect of “loss of opportunity and non-pecuniary damages” as well as 5700 EUR costs and expenses. These sums were paid to the applicant on 08/10/2006.

Spain considers that there is no need to adopt further individual measures.

(2) GENERAL MEASURES

Spanish law recognises without restriction the need for a proper summons and the respect of the appropriate conditions for the delivery thereof, which guarantee effective judicial protection and the right to appeal provided by Article 6 of the European Convention on Human Rights. Such a right is moreover repeatedly recognised in the case-law of the CC. In this connection, mention should be made of Judgment TC 135/1997 of 21 July (subsequent to the facts in the present case). In this judgment it is established that: “Article 24 CE requires that parties should be duly summonsed by means of an act of communication established by law. Presence at proceedings makes it possible to defend oneself: this constitutional precept in general terms prevents substantive judicial decisions inaudita parte […]. This Court has insisted since its earliest decisions on the need for judicial organs to exercise the greatest care and respect for procedural norms in carrying out their acts of communication with parties.” This declaration is reinforced by a reference to Article 6§1 of the Convention and to Committee of Ministers’ Recommendation (75) 11 of 21 May 1975 on additional requirements in criminal proceedings.

The same position was taken in subsequent judgments. In this connection it suffices to recall Judgment TC 255/2006 of 11 September 2006, in which it is established that:

“Having regard to the diligence with which judicial bodies should deal with summonses, it is emphasised that they must be carried out in conformity with the law by satisfying the procedural conditions, in order that the act or decision thus notified is brought to the knowledge of the applicant party and that, by the same token, the court may have the certainty that the required legal conditions have been fulfilled and the communication has indeed been received by its addressee.”

The state of affairs found by the European Court in its judgment does not call for further general measures, as it constituted a deviation in the application of the statute and case-law in the present case. It was an isolated occurrence.

As regards the question of the excessive formalism of Spanish courts in applying procedural rules (leading in this case to the dismissal of the applicant’s plea of nullity and amparo appeal through an excessively restrictive interpretation of the law by national courts), this is being dealt with in the context of the Stone Court Shipping (55524/00) group of cases.

In the light of the above, Spain considers that no further general measures are required.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)268112

Execution of the judgment of the European Court of Human Rights
Iselsten against Sweden

(Application No. 11320/05, judgment of 04/11/2008, final on 06/04/2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns excessive length of civil proceedings (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 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, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)268

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

      Introductory case summary

This case concerns excessive length of domestic civil proceedings initiated by the applicant in order to hold the state liable for damages. The proceedings began on 17 March 1997 and ended on 14 September 2004 (violation of Article 6§1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1 500 EUR

2 500 EUR

4 000 EUR

Paid on 04/06/2009

b) Individual measures

The proceedings in question are closed.
No other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The judgment was published together with a summary in Swedish on the government’s website (www.manskligarattigheter.gov.se) and on the website of the National Courts Administration (www.domstol.se). It has been sent out to the relevant domestic courts and authorities including the courts concerned, the Swedish Supreme Court, the Courts of Appeal, the Bar Association, the Chancellor of Justice and the Parliamentary Ombudsmen. Measures have already been taken to avoid new, similar violations (see Resolution CM/ResDH(2009)70 in the case of Klemeco Nord AB and Rey and others against Sweden, Applications Nos. 73841/01 and 17350/03).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)269113

Execution of the judgment of the European Court of Human Rights
Ziegler against Switzerland

(Application No. 33499/96, judgment of 21 February 2002, final on 21 May 2002)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the applicants’ right to a fair hearing in that they had not having been given the opportunity to comment on the submissions of the lower court and of the opposing party in proceedings before the Federal Court (violation of Article 6, paragraph 1) (see details in Appendix);

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

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

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

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, 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;

Recalling that new issues relating to the aspect of a fair hearing before the Federal Court are being examined by the Committee of Ministers in the context of more recent judgments;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)269

Information about the measures to comply with the judgment in the case of
Ziegler against Switzerland

      Introductory case summary

In 1994 the applicants announced their intention to construct an underground garage. The neighbours complained, arguing that certain prescribed boundary distances between their properties had not been respected. Their objection was dismissed in first instance and on appeal. In the judgment of the Cantonal Court seized on appeal, the latter noted the applicants’ commitment not to make any amendment on a strip of fifty centimetres of length starting from the border separating their properties. However, the Cantonal Court ordered the applicants to pay costs and expenses (in the amount of 11 450,50 Swiss francs), stating that the applicants’ plans had been incomplete, even incorrect, and that the terms used were vague which incited the appellants to retain their objection. The Cantonal Court found that the uncertainties, which arose due to the applicants’ behaviour of bad faith, were in fact at the roots of the two proceedings. The applicants filed a public law appeal with the Federal Court, which asked the Cantonal Court and the neighbours (the applicants’ opponents) for observations. The Federal Court communicated the different observations gathered to the applicants’ lawyer but refused them the possibility to respond. It subsequently dismissed their public law appeal.

The European Court found a violation of the applicants’ right to a fair hearing on account of not having been given the opportunity to comment on the submissions of the lower court and of the opposing party in the proceedings before the Federal Court (Article 6, paragraph 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

4 500 Swiss francs

4 500 Swiss francs

Paid on 23/02/2002

b) Individual measures

As regards to the measures which could be taken at national level to ease the consequences of the violation found, it is worth noting that the re-opening of the civil proceedings at issue does not appear to be an appropriate measure in this case. First, these proceedings opposed the applicants to a third party of good faith and their possible re-opening could prejudice that third party’s vested rights. Secondly, it should be noted that the applicants’ claim before the Federal Court concerned mainly the fact that they had been ordered to pay court expenses which, in their view, were disproportionate since the Cantonal Court rejected the appellants’ claim. The European Court held that the finding of a violation in itself constituted sufficient just satisfaction for any non-pecuniary damage suffered by the applicants. As regards pecuniary damages, the applicants did not submit any claim to this effect.

In view of the above, no further individual measure appears necessary.

      II. General measures

The Federal Court changed its case-law in 2005: when a court informs a party of the observations of the opposing side, that party needs to react if it wants to submit its own comments to said observations. If it does not react, the court can assume that the party has renounced its right to reply (see the judgment of the Federal Court of 22 November 2005, ATF 132 I 42, considerations 3.3.3; see also § 20 of the judgment of the European Court in the case of Schaller-Bossert against Switzerland, application No. 41718/05). Subsequent judgments confirmed this jurisprudence (see e.g. ATF 133 I 99; ATF 133 I 100).

The judgment of the European Court was published in the Decisions of administrative authorities of the Confederation (No. 66/IV (2002)) and sent out to the authorities directly concerned.

New issues relating to the aspect of a fair hearing before the Federal Court are being examined by the Committee of Ministers in the context of two more recent judgments (Elles and others, application No. 12573/06; and Schaller-Bossert, application No. 41718/05).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)270114

Execution of the judgment of the European Court of Human Rights
Scavuzzo-Hager and others against Switzerland

(Application No. 41773/98, judgment of 7 February 2006, final on 7 May 2006)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the failure to conduct an effective inquiry into the death of a member of the applicants' family following his arrest (violation of Article 2, procedural aspect);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)270

Information about the measures to comply with the judgment in the case of
Scavuzzo-Hager and others against Switzerland

      Introductory case summary

In July 1994, P., a member of the applicants' family, died after having been arrested by two police officers.

In its judgment, the Court considered that it could be concluded neither that P.’s death had been caused by the use of force on the part of the police, nor that the police officers had failed to discharge their obligation to protect his life (no substantive violation of Article 2).

The Court, on the other hand, observed that the police officers who had arrested P. had never been questioned. Furthermore, the authorities discontinued the proceedings on the sole ground that the level of intoxication of P. would in any event have caused his death. The authorities also failed to question experts to determine whether the force used by the police officers, even though not lethal in itself, had nevertheless caused or at least hastened P.'s death. Regard being had to the fact that P. had lost consciousness at the very moment when the police officers were using force to restrain him, the investigation should have covered that question. In this connection, the precise method by which P. had been restrained was not established. Moreover, the prosecuting authorities failed to consider whether the police officers could or could not have been aware of the P’s vulnerability.
In view of the above, the Court held that there had been a procedural violation of Article 2 in that the Swiss authorities had not conducted an effective investigation into the circumstances of the death of the applicants’ relative.

      I. Payment of just satisfaction and individual measures

Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

12 000 EUR

9 500 EUR

21 500 EUR

Paid on 06/06/2006

Individual measures

The Court awarded the applicants just satisfaction in respect of the non-pecuniary damage sustained due to the lack of an effective investigation.

As regards the applicants’ interest in knowing about the exact circumstances of the death of their relative, or even to claim compensation, the authorities indicated that the Federal Tribunal’s case-law of 2005 mentioned below (see “General measures”), concerning the possibility to request an effective and in-depth official investigation in case of substantiated allegations of ill-treatment by the police, could apply to this case. However, the applicants have not made any request for a new investigation.

Moreover, the authorities noted that potential criminal proceedings against the police officers would, today, have to be ruled out, as the facts at issue in this case are clearly time-barred. Furthermore, the conclusion of the medical experts according to which the death had not been caused by the use of force on the part of the police, was neither put into question by the Court, nor did the Court find that the police officers had failed to discharge their obligation to protect the life of the applicants’ relative. With a view to these findings, it would not be justified in this case to question legal certainty, i.e. the statute of limitations of the present case under the criminal law.

      II. General measures

The judgment of the European Court was sent out to the judicial and police directorates of the Cantons. Furthermore, the judgment was published in the Digest of Confederal Administrative Case-law, VPB 70.105.

The authorities also underlined that according to the Federal Court's case-law, the Convention is part of the Swiss legal system and that thus it must be applied directly by all judicial, administrative and police authorities, both at federal and cantonal levels. They added that it is for these authorities to ensure that investigations in similar cases are effective within the meaning of the Convention.

Finally, the Swiss authorities have indicated that the Federal Tribunal had recognised the right of applicants who consider they have substantiated allegations of police ill-treatment, to request an effective and in-depth official investigation as defined in the Convention in which they must be sufficiently and effectively involved, before the judgment of the European Court. Such a right was explicitly incorporated into Swiss law by the judgment of 6 October 2005.

      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 Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)271115

Execution of the judgments of the European Court of Human Rights
2 cases against Turkey concerning the applicants’ continued detention
during the hours after following the release order

(Değerli, Application No. 18242/02, judgment of 05/02/2008, final on 05/05/2008
Özdemir, Application No. 21007/04, judgment of 18/11/2008, final on 18/02/2009)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the applicants’ continued detention during the hours after following the release order (violations of Article 5, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order 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 just satisfaction provided in the Değerli judgment (see details in Appendix),

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

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

      - general measures preventing, similar violations;

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

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

      DECIDES to close the examination of these cases.

      Appendix to Resolution ResDH(2011)271

Information about the measures to comply with 2 cases against Turkey
concerning the applicants’ continued detention during the hours
after following the release order

    Introductory case summary

The cases concern the applicants' continued detention (pending trial in the Değerli case, and police custody in the Özdemir case) during the hours following the release order (violations of Article 5§1).

The applicants were released only after a delay ranging between 18 hours and 50 minutes to 23 hours and 35 minutes.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Değerli (18242/02)

------

4000 EUR

1500 EUR

5500 EUR
Paid on 09/07/2008

Özdemir (21007/04)

No just satisfaction awarded.

b) Individual measures

The applicants were released. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The European Court’s judgments were translated into Turkish, sent out to the relevant authorities and published on the official web site of the Turkish Ministry of Justice (www.inhak-bb.adalet.gov.tr). The Turkish authorities considered that the problem revealed by these judgments was an isolated one and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future.

It is also recalled that following the constitutional and legislative reforms, the provisions related to police custody were brought into conformity with the requirements of Article 5 of the Convention (see Sakık and others (Final Resolution ResDH(2002)110) and Ayaz and others (Final Resolution CM/ResDH(2008)29).

III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)272116

Execution of the judgment of the European Court of Human Rights
Amato against Turkey

(Application No. 58771/00, judgment of 03/05/2007, final on 12/11/2007)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the applicant's right to the peaceful enjoyment of his possessions in that the authorities refused to compensate the demolition of his house as ordered by the courts on the ground that it posed life-threatening danger (Article 1 of Protocol No. 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)272

Information about the measures to comply with the judgment in the case of
Amato against Turkey

      Introductory case summary

The case concerns the demolition of the applicant's house by the authorities without payment of compensation (violation of Article 1 of Protocol No. 1).

In 1994, the applicant bought a house in a neighbourhood which had been declared a “natural disaster area” following a major landslide about thirty years before. When the applicant bought it, the house was vacant and in ruins. In 1995, another rockslide occurred and some of the houses in the neighbourhood sustained further damage. The authorities established that the applicant's house posed life-threatening danger for the community. Accordingly, at the request of the Directorate of Public Works and Settlement, the Izmir Governor's Office ordered it to be demolished without delay.

Upon demolition, the applicant filed an action for compensation. However, the Izmir Administrative Court dismissed the request, finding that the applicant had been aware that the house was located in a disaster area, that his vacant and ruined house had no historical or architectural value and that it posed an immediate threat to public safety. In 1998, the Supreme Administrative Court upheld this decision.

The European Court found that although the demolition was justified under the circumstances, the total lack of compensation upset, to the applicant's detriment, the fair balance that needed to be struck between the protection of property and the requirements of the general interest.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

1500 EUR

-

1000 EUR

2500 EUR

                      Paid on 06/02/2008

b) Individual measures

The Court noted that when the basis of the violation found is the lack of compensation, the compensation need not necessarily reflect the full value of the property. The Court therefore awarded a lump sum that would correspond to the applicant’s legitimate expectations to obtain compensation (§ 32).

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

      II. General measures

The European Court’s judgment was translated into Turkish and sent out to the relevant authorities. The Turkish authorities considered that the problem revealed by this judgment was an isolated one and that the publication and dissemination of the Court’s judgment would therefore sufficient to prevent similar violations in the future.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)273117

Execution of the judgment of the European Court of Human Rights
Mörel against Turkey

(Application No. 33663/02, judgment of 14/06/2007, final on 14/09/2007)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the applicant's right to the peaceful enjoyment of his possessions due to the domestic courts’ dismissal of the applicant’s compensation claim for expropriation, for being out of time, despite notification shortcomings on the part of the authorities (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 in order to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

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

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

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

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

      - general measures preventing, similar violations;

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

      DECIDES to close the examination of this case.

      Appendix to Resolution ResDH(2011)273

Information about the measures to comply with the judgment in the case of
Mörel against Turkey

The case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions due to the courts’ dismissal of the applicant’s application for additional compensation for expropriation on the ground that it was filed out of time, although the expropriation was not properly notified.

In 1988, the authorities decided to expropriate the applicant’s property. However, they failed to identify its owner, as the property tax declarations could not be located and that the title deed office records indicated its original owner and was thus outdated. As direct notification was not possible, the expropriation was announced in local newspapers as well as over loudspeakers throughout the town, pursuant to Article 10 of Law on Expropriation No. 2942. In 1996, when he became aware of the expropriation, the applicant lodged an additional compensation claim. He relied on a principle of Turkish law that a prescription period would not run in the absence of proper notification. However the courts held that the manner in which the expropriation was notified was justifiable and thus the prescription period had elapsed.

The European Court concluded that the authorities did not show due diligence in notifying the applicant of the expropriation of the land and that the courts should have entertained the exception that he invoked. The Court therefore held that the applicant had been deprived of his property without adequate compensation (violation of Article 1 of Protocol No. 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

30 400 EUR

----

4 000 EUR

34 400 EUR
Paid on 5/12/2007

b) Individual measures

The European Court awarded the applicant a significant amount of just satisfaction in respect of pecuniary damage sustained.

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

      II. General measures

The European Court’s judgment was translated into Turkish, sent out to the high courts and relevant authorities, and published on the official web site of the Turkish Ministry of Justice (www.inhak-bb.adalet.gov.tr). The Turkish authorities considered that the problem revealed by this judgment was an isolated one, and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future. Therefore, no further general measures appear necessary.

      III. Conclusions

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)274118

Execution of the judgments of the European Court of Human Rights
Gög, Kolsuzoğlu and Agbayır against Turkey

(Applications Nos. 10332/02 and 25805/02, judgment of 24/01/2008, final on 24/04/2008)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the infringement of the principle of legal certainty by domestic courts (Article 6§1) (see details in Appendix);

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

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

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

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

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

      - general measures preventing, similar violations;

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

      DECIDES to close the examination of this case.

      Appendix to Resolution CM/ResDH(2011)274

Information about the measures to comply with the judgment in the case of
Gög, Kolsuzoğlu and Agbayır against Turkey

The case concerns the violation of the applicants’ right to a fair trial on account of subsequent factual findings by domestic courts in contradiction with earlier final judgments (violation of Article 6§1).

The applicants were joint owners of a plot of land, which was seized in 1991 without compensation by the Ministry of Defence. In 1996, the applicants brought an action seeking compensation for the de facto expropriation of their land, arguing that their land had been occupied since 1991 by the Ministry of Defence. The government objected that the applicants’ action was time-barred, arguing that the said land had been occupied since 1977 and not 1991. The courts established that the land had been occupied since 1991 and awarded compensation to the applicants. This decision was upheld by the Court of cassation.

In the context of further proceedings brought by the applicants in 1999, seeking additional compensation, the Court of Cassation ruled in favour of the government: it found that the land had been occupied since 1977 and that the additional requests for compensation were accordingly time-barred. The applicants’ actions were dismissed in 2000 and 2001.

The European Court found that, by returning without any valid reason to an issue which had already been the subject of a final decision, the domestic courts had infringed the principle of “legal certainty”.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

35 000 EUR

------

35 000 EUR
Paid on 25/06/2008

b) Individual measures

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

      II. General measures

The European Court’s judgment was translated into Turkish, sent out to the high courts and relevant authorities, and published on the official web site of the Turkish Ministry of Justice (www.inhak-bb.adalet.gov.tr). The Turkish authorities considered that the problem revealed by this judgment was an isolated one and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future. Therefore, no further general measures appear necessary.

      IV. Conclusions

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)275119

Execution of the judgment of the European Court of Human Rights
Islamic Republic of Iran Shipping Lines against Turkey

(Application No. 40998/98, judgment of 13/12/2007, final on 13/03/2008)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the unjustified seizure of a ship and its cargo for over a year on suspicion of arms smuggling (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 in order to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

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

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

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

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

      - general measures preventing, similar violations;

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

      DECIDES to close the examination of this case.

      Appendix to Resolution CM/ResDH(2011)275

Information about the measures to comply with the judgment in the case of
Islamic Republic of Iran Shipping Lines against Turkey

The case concerns the seizure in October 1991 of a ship flying the Cypriot flag as well as its cargo on suspicion of arms smuggling. The ship was chartered by the applicant, an Iranian shipping company.
The European Court noted that in December 1991, following an investigation into the matter, the Turkish Ministry of Foreign Affairs confirmed that the cargo transported by the applicant belonged to Iran and that its seizure could not be justified by national security concerns. The European Court therefore considered that there was no justification for impounding the vessel until December 1992, when the ship and its cargo were restored. It also took the view that the refusal of national courts to compensate the applicant company for the damage sustained imposed a disproportionate burden upon it (violation of Article 1 of Protocol No. 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

35 000 EUR

------

35 000 EUR
Paid on 19/06/2008

b) Individual measures

The vessel and its cargo were released and the European Court noted that the applicant received pecuniary damages in subsequent arbitration proceedings (§ 115 of the judgment).

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

      II. General measures

The European Court’s judgment was translated into Turkish, sent out to the high courts and relevant authorities, and published on the official web site of the Turkish Ministry of Justice (www.inhak-bb.adalet.gov.tr). The Turkish authorities considered that the problem revealed by this judgment was an isolated one and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future. Therefore, no further general measures appear necessary.

      V. Conclusions

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)276120

Execution of the judgment of the European Court of Human Rights
Menemen Minibüsçüler Odası against Turkey

(Application No. 44088/04, judgment of 09/12/2008, final on 09/03/2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns unjustified interference with the applicant’s right of access to a court (Article 6§1) (see details in Appendix);

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

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

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

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

      - general measures preventing, similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)276

Information about the measures to comply with the judgment in the case of
Menemen Minibüsçüler Odası against Turkey

The case concerns unjustified interference with the applicant’s right of access to a court. The applicant, a chamber of commerce engaged in private trade providing transport services for the public, was not informed when a competing co-operative appealed against administrative acts having an impact on its public transport activities. This was in spite of the wording of section 31 of the Code of Administrative Procedure which provides essentially that the judge must, ex officio, notify the introduction of administrative appeals to those to whom the matter at issue seems to present an interest. The European Court found that the failure to comply with this provision had prevented the applicant from having a hearing in a matter concerning its rights and obligations (violation of Article 6§1).

      I. Individual measures

The European Court rejected the applicant's claim for just satisfaction in respect of pecuniary damage, considering that it could not speculate as to the outcome of the proceedings had the violation not occurred. The applicant made no claim in respect of non-pecuniary damage.

It is possible for the applicant to request the reopening of domestic proceedings in accordance with Article 53/1(ı) of the Law on Administrative Procedure. This provision allows the reopening of proceedings following a violation found by the European Court.

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

      II. General measures

The European Court’s judgment was translated into Turkish, sent out to the high courts and relevant authorities, and published on the official web site of the Turkish Ministry of Justice (www.inhak-bb.adalet.gov.tr). The Turkish authorities considered that the problem revealed by this judgment was an isolated one, and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future. Therefore no further general measure appears necessary.

      III. Conclusions

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)277121

Execution of the judgment of the European Court of Human Rights
Mesutoğlu against Turkey

(Application No. 36533/04, judgment of 14/10/2008, final on 14/01/2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns unfairness of certain administrative proceedings in that domestic courts interpreted provisions of the Code of Administrative Procedure in so excessively formalistic way that the applicants were denied their right of access to a court (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 in order to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

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

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

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

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

      - general measures preventing, similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)277

Information about the measures to comply with the judgment in the case of
Mesutoğlu against Turkey

The case concerns the unfairness of certain proceedings before administrative courts in that domestic courts interpreted provisions of the Code of Administrative Procedure in such an excessively formalistic way that the applicants were denied their right of access to a court (violation of Article 6§1).

In June 2000, the applicants sued the municipality of Elaziğ for damages before the first-instance court of that town, alleging the municipal authorities' responsibility in relation to a traffic accident which caused the death of the father of one of the applicants and the son of the other.

In November 2000, the first-instance court declared that it was not competent to try the case ratione materiae and ordered the transfer of the dossier to the Malatya Administrative Court. In December 2002, the administrative court declared, at a late stage in the proceedings, that the applicant's suit was inadmissible. It considered that Article 9 of the Code of Administrative Procedure did not provide that an administrative court might be seised of a case on the basis of the transfer of a dossier from a civil court following a conclusion of incompetence ratione materiae, and that the applicants should themselves have brought their appeal directly before the competent administrative court.

The European Court considered that such a strict interpretation of the provisions of the Code of Administrative Procedure had prevented the applicants from obtaining an examination of the merits of their case by a competent court and had denied them their right of access to justice.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-----

3 000 EUR

----

3 000 EUR
Paid on 13/04/2009

b) Individual measures

It is possible for the applicant to request the reopening of domestic proceedings in accordance with Article 53/1(ı) of the Law on Administrative Procedure. This provision allows the reopening of proceedings following a violation found by the European Court.

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

      II. General measures

The European Court’s judgment was translated into Turkish, sent out to the high courts and relevant authorities, and published on the official web site of the Turkish Ministry of Justice (www.inhak-bb.adalet.gov.tr). The Turkish authorities considered that the problem revealed by this judgment was an isolated one and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future. Therefore, no further general measures appear necessary.

      III. Conclusions

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)278122

Execution of the judgment of the European Court of Human Rights
Oral No. 2 against Turkey

(Application No. 18384/04, judgment of 25/11/2008, final on 25/02/2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns unfairness of certain proceedings before a tax court (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 in order to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

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

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

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

      - general measures preventing, similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)278

Information about the measures to comply with the judgment in the case of
Oral (No. 2) against Turkey

The case concerns the unfairness of certain proceedings before a tax court in that an expert report which was crucial to the outcome of the trial was not communicated to the applicant, who was thus denied the possibility of making observations concerning the expert's conclusions (violation of Article 6§1).

In January 2000, the applicant seised a tax court in order to contest fiscal fines imposed upon him by the municipal authorities of Küçük Cekmece, contending, counter to the opinion of the municipality, that his earlier property tax declarations had been correct. The tribunal called for an expert report upon which its verdict was based but which was not disclosed to the applicant.

The European Court considered that the failure to disclose the expert report, which had a determining effect on the outcome of the proceedings, had placed the applicant in a situation of clear disadvantage as against the tax administration. It also considered that the inclusion of the report in the tax tribunal's dossier was not a means of remedying the applicant's situation.

      I. Individual measures

The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage sustained. With regard to pecuniary damage, the Court held that it could not speculate as to the outcome of the proceedings had the violation not occurred.

According to Article 53/1(ı) of the Law on Administrative Procedure, which also applies to the proceedings before tax courts, a request for reopening of domestic proceedings may be made in cases where the European Court found a violation of the Convention.

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

      II. General measures

The European Court’s judgment was translated into Turkish, sent out to the high courts and relevant authorities, and published on the official web site of the Turkish Ministry of Justice (www.inhak-bb.adalet.gov.tr). The Turkish authorities considered that the problem revealed by this judgment was an isolated one, and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future. Therefore, no further general measures appear necessary.

      VI. Conclusions

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)279123

Execution of the judgments of the European Court of Human Rights
in three cases against Turkey concerning lack of compensation
for the loss of title to property

Özcan Gani (Application No. 11189/04), judgment of 04/11/2008, final on 04/02/2009
Efendioğlu (Application No. 3869/04), judgment of 27/10/2009, final on 27/01/2010
Kahyaoğlu (Application No. 53007/99+), judgment of 20/10/2009, final on 20/01/2010

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

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

Recalling that the violations of the Convention found by the Court in these cases concern the lack of compensation for the loss of title to property under Article 38 of the Law on Expropriation (violations 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 judgments;

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

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

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

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

      - general measures preventing similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)279

Information on the measures taken to comply with the judgments in three cases against Turkey concerning lack of compensation for the loss of title to property

    Introductory case summary

These cases concern the violation of the applicants’ right to the peaceful enjoyment of their possessions in that they were unable to obtain compensation for the loss of title to their property under Article 38 of the Law on Expropriation of 04/11/1983, in force at the material time. This article provided that claims for the restitution of property occupied for purposes of public use lapse 20 years after occupation.

The European Court noted in particular that once Article 38 had entered into force, the applicants could claim neither restitution nor compensation since the time-limit fixed by Article 38 had expired (violation of Article 1 of Protocol No. 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Özcan Gani (11189/04)

300 000 EUR

---

---

300 000 EUR
Paid on 04/05/2009

Efendioğlu (3869/04)

350 000 EUR

---

560 EUR

350 560 EUR
Paid on 29/04/2010

Kahyaoğlu (53007/99+)

1 330 000 EUR

---

6 000 EUR

1 336 000 EUR
Paid on 27/04/2010

b) Individual measures

In view of the just satisfaction awarded by the Court in respect of pecuniary damage suffered by the applicants, no further individual measure was considered necessary by the Committee of Ministers.

II. General measures

These cases present similarities to that of I.R.S. and others against Turkey closed by final Resolution CM/ResDH(2007)98, in which the Turkish authorities already adopted the necessary general measures: in a decision of April 2003 the Turkish Constitutional Court declared Article 38 of the Law on Expropriation unconstitutional on the grounds that its application was not in conformity with the principle of the rule of law and that it violated the requirements of the Convention. As a result this provision is null and void.

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 Turkey have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)280124

Execution of the judgments of the European Court of Human Rights
Karaman against Turkey

(Application No. 6489/03, judgments of 15/01/2008, final on 15/04/2008,
and of 08/06/2010, final on 08/09/2010)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the domestic courts’ refusal to compensate the applicants when the administrative authorities failed to use a portion of property donated by the applicants for its intended public-interest purpose (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 in order to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

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

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded 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 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 this case and

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)280

Information about the measures to comply with the judgments in the case of
Karaman against Turkey

      Introductory case summary

The case concerns the domestic courts' refusal to compensate the applicants when the administrative authorities failed to use a portion of property donated by the applicants for its intended public-interest purpose (violation of Article 1 of Protocol No. 1).
In 1997, the applicants donated a plot of their land to the authorities for the construction of a health-care facility. However they later sued the mayor's office when they learned that a portion of it was sold to third parties. Based on the contract-law principle of “conditional donation”, they requested compensation. The Court of Cassation held that the matter should be analysed as a public-law issue akin to relinquishment in the context of expropriation law rather than a conditional donation as a matter of contract law. It accordingly held that once a property was donated to the authorities, its previous owners could no longer claim any right in relation to it.
The European Court held that the applicants had had a legitimate expectation that the authorities would put the entire property to its intended use, and that they would be refunded or compensated for any portion that was not so utilised. Without examining the domestic law provisions in the abstract, the European Court held that the manner in which domestic law was interpreted and applied in the dispute could not be reconciled with the requirements of the Convention.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

47 817 EUR

----

----

47 817 EUR
(.)

The applicants signed a protocol with the relevant municipality and waived their right to compensation

b) Individual measures

On 8/06/2010, the European Court rendered its judgment on the just satisfaction, and awarded the applicants a total amount of 47 817 EUR for pecuniary damages.

On 8/09/2010, the authorities informed the Committee of Ministers that the applicants had explicitly waived their right to compensation. The authorities submitted that the applicants had signed a protocol with the relevant municipality, according to which the municipality would donate the property in question to a charitable association (Yoksullara Yardım Derneği). On 28/08/2010, the municipality transferred the ownership of the property to the Yoksullara Yardım Derneği. The applicants also wrote to the Committee of Ministers confirming that they had explicitly waived their right to compensation in accordance with this protocol. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

The judgment of the European Court was sent out to the relevant authorities and published on the website of the Ministry of Justice http://www.edb.adalet.gov.tr. The Turkish authorities considered that the problem revealed by this judgment was an isolated one which stemmed from the interpretation and the application of the domestic law by national courts, and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future. Therefore, no further general measures appear necessary.

      III. Conclusions

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)281125

Execution of the judgment of the European Court of Human Rights
Naif Demirci against Turkey

(Application No. 17367/02, judgment of 26/05/2009, final on 26/08/2009)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the unlawfulness of the applicant’s transfer to gendarmerie premises for further interrogation after being placed in pre-trial detention under the state of emergency legislation (violation of Article 5§1), lack of a remedy in this respect (violation of Article 5§4) and lack of a right to compensation (violation of Article 5§5) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)281

Information about the measures to comply with the judgment in the case of
Naif Demirci against Turkey

      Introductory case summary

The case concerns the unlawfulness of the applicant’s transfer to gendarmerie premises for further interrogation after being detained on remand on the basis of Decree-Law No. 430 on additional measures to be taken in the region covered by the state of emergency (violation of Article 5§1), lack of a remedy in this respect (violation of Article 5§4), and lack of a right to compensation for unlawful detention (violation of Article 5§5).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

----

4 500 EUR

----

4 500 EUR

                      Paid on 13/11/2009

b) Individual measures

No individual measure was considered necessary by the Committee of Ministers, since the applicant is no longer detained.

      II. General measures

The case presents similarities to those of Dağ and Yaşar against Turkey and Karagöz against Turkey closed by final Resolution CM/ResDH(2007)96 which set out the necessary general measures already adopted by the Turkish authorities. In November 2002 the state of emergency was lifted in all regions in Turkey. Consequently, Decree-Law No. 430 is no longer in force.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)282126

Execution of the decision of the European Court of Human Rights
Demir against Turkey

(Application No. 20653/07, decision of 28/09/2010)

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly-settlement were executed by the respondent state,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close its examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)283127

Execution of decisions of the European Court of Human Rights
9 cases against Ukraine

Cases, Applications Nos.

Decisions of

Lobas, application No 12748/05

22/06/2010

Kublichek, application No 24464/07

22/06/2010

Odzhykovskiy, application No 24249/08

22/06/2010

Karpenko, application No 50242/06

05/10/2010

Olimpeks, application No 52730/09

02/11/2010

Zhukova, application No 37731/06

16/11/2010

Galkina, application No 7951/06

14/12/2010

Murayenko, application No 11524/06

11/01/2011

Stanchev, application No 35131/08

12/04/2011

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

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

Having satisfied itself that the terms of the friendly-settlements were executed by the respondent state,

      DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

      DECIDES to close their examination.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)284128

Execution of the judgment of the European Court of Human Rights
Steel and Morris against the United Kingdom

(Application No. 68416/01, judgment of 15 February 2005, final on 15 May 2005)

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

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

Recalling that the violations of the Convention found by the Court in this case concern the principle of equality of arms in defamation proceedings against the applicants, in that they were denied legal aid (violation of Article 6§1) and a failure to strike the correct balance between the need to protect the applicants’ right to freedom of expression and the need to protect the rights and reputation of the plaintiff companies (violation of Article 10). (see details in Appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)284

Information about the measures to comply with the judgment in the case of
Steel and Morris against the United Kingdom

      Introductory case summary

The case concerns a violation of the principle of equality of arms in defamation proceedings from 1990 to 2000 against the applicants, in that they were denied legal aid (violation of Article 6§1). The applicants had been sued by two McDonalds’ companies following the publication and distribution of a campaign leaflet against McDonalds by a London environmental group with which the applicants were associated.

The European Court noted that the applicants had received no legal aid since this was not provided for in such cases under the law then in force. As a result, considering the applicants’ modest means and the complexity of the case, the Court found that they were deprived of the opportunity to present their case effectively before the courts and that there was an “unacceptable inequality of arms” (§72 of judgment).

The European Court also found that in these circumstances, and given the disproportionate damages awarded by the domestic court against the applicants, there had been a failure to strike the correct balance between the need to protect the applicants’ right to freedom of expression and the need to protect the rights and reputation of the plaintiff companies (violation of Article 10).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

--

35 000 EUR

47 311,17 EUR

82 311,17 EUR

Paid within the time-limit set

b) Individual measures

The payment of the damages awarded against the applicants in the domestic proceedings was not enforced prior to the European Court’s judgment. The European Court noted that because of the period of time that had elapsed since the order for damages was made against the applicants, McDonald's would need the leave of the domestic courts before it could attempt to enforce the award. Therefore it made no award for pecuniary damage. The United Kingdom authorities are not aware that McDonalds has ever applied for leave to enforce the judgment. If such an application were made, the domestic court would have regard to the decision of the European Court.

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

      II. General measures

1) Violation of Article 6§1:

a) England and Wales: Subsequent to the facts of this case, the Access to Justice Act 1999 (AJA 1999), concerning legal aid in England and Wales, came into force (01/04/2000). Legal aid is in principle still excluded for defamation cases, but Section 6(8) of this Act nonetheless allows the Lord Chancellor to authorise the Legal Services Commission to grant legal aid to an individual defamation litigant following a request from the Commission. Guidance on the making of such requests was issued by the Lord Chancellor to the Commission, and was updated following the judgment of the European Court. The updated version makes it clear that this judgment is to be considered the “benchmark” by which cases are to be considered. In addition, the government has undertaken to keep the guidance under review, and revise it as necessary to reflect any further developments in the jurisprudence of the court.

b) Northern Ireland: The legislative position in Northern Ireland in relation to legal aid in defamation cases is comparable to that in England and Wales. Under Article 10A of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 the Department of Justice may authorise the Northern Ireland Legal Services Commission to grant legal aid to an individual defamation litigant following a request from the Commission. Guidance was issued on the making of such requests, under Article 8 of the Access to Justice (Northern Ireland) Order 2003, and is in comparable terms to that issued in England and Wales.

c) Scotland: The Legal Profession and Legal Aid (Scotland) Act 2007 received Royal Assent on 19/01/2007. Section 71 of the Act contains provisions amending s. 14 of the Legal Aid (Scotland) Act 1986 relating to defamation or verbal injury. Section 71 of the 2007 Act ensures the implementation of the Steel and Morris judgment in Scotland, by ensuring that civil legal aid will be available to pursuers and defenders alike, subject to an “exceptional cases test” which is set out in a ministerial direction.

The Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2010 came into force on 26/10/2010. This ensures that in making civil legal aid available for persons in proceedings that are wholly or partly concerned with defamation or verbal injury, the Scottish Legal Aid Board must be satisfied (in addition to the usual statutory tests) that: (i) there is significant wider public interest in the resolution of the case and funded representation will contribute to it; or (ii) that the case is overwhelming importance to the person, and (iii) that there is something exceptional about the person or the case such that without public funding for representation, it would lead to obvious unfairness in the proceedings. In determining whether there is something exceptional about the person or the case, the Board must be satisfied that the degree of exceptionality is the same or is approximately the same as in the case of Steel and Morris.

2) Violation of Article 10:

The judgment of the European Court has received wide coverage and comment in the national and local press and broadcast media. In addition, it was the subject of a Parliamentary question on 22/02/2005. The competent courts are therefore informed of the judgment and are able to put it into effect, with respect to both the question of legal aid in similar cases and the proportionality of damages.

The judgment of the European Court was published at: The Times Law Reports, 16/02/05; The European Human Rights Reports (2005) 41 E.H.R.R. 22; The Entertainment and Media Law Reports [2005] E.M.L.R. 15; The Law Quarterly Review (20054) Vol. 121 (July 2005), pp. 395-399; The European Human Rights Law Review (2005) 3 E.H.R.L.R., pp. 301-309.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)285129

Execution of the judgment of the European Court of Human Rights
Brennan against the United Kingdom

(Application No. 39846/98, judgment of 16 October 2001, final on 16 January 2002)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the presence of a police officer during the applicant’s first consultation with his lawyer after his arrest (violation of Article 6, paragraph 3 (c) in conjunction with Article 6, paragraph 1) (see details in Appendix);

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

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

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

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

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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)285

Information about the measures to comply with the judgment in the case of
Brennan against the United Kingdom

      Introductory case summary

The case concerns a breach of the applicant’s defence rights in 1990 due to the presence of a police officer during his first consultation with his lawyer (solicitor), without any compelling reason for the imposition of this restriction. The applicant was thus deprived of effective legal advice (violation of Article 6, paragraph 3(c) in conjunction with Article 6, paragraph 1).

The European Court indicated that the consultation, potentially of great importance to the applicant's defence at trial, was the first occasion for him to seek advice from his lawyer as to whether he should answer some particular questions by the police or risk inferences being drawn against him later in accordance with the provisions of the Criminal Evidence (Northern Ireland) Order 1988. The Court found "no reason to doubt the good faith of the police in imposing and implementing this measure…it nonetheless [found] no compelling reason arising in this case for the imposition of the restriction" (§59 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

-

-

6 920 EUR

6 920 EUR

Paid on 22/04/2002

b) Individual measures

The European Court considered it impossible to speculate as to whether the outcome of the applicant’s trial would have been any different if he had obtained a private consultation with his solicitor and accordingly found that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damage arising from the violation established.

The United Kingdom indicated that the applicant might request the re-opening of the domestic proceedings under sections 9-12 of the Criminal Appeal Act 1995. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

      II. General measures

On 16/07/2003, the Home Office sent guidance to the competent police authorities, drawing their attention to the Court’s conclusions (especially to §§ 58-62 of the Court’s judgment). The Home Office stressed that the presence of a police officer during a defendant’s consultations with his solicitor should be imposed only in limited circumstances, namely when the police have reasonable grounds to believe that one of the consequences set out in §8(4) of Schedule 8 to the Terrorism Act 2000 would otherwise occur (in particular, interference with evidence, physical injury to any person, alerting a person suspected of committing a serious offence, alerting a person, thereby hindering the prevention of an act of terrorism).

The judgment of the European Court was published in the Times Law Report of 22 October 2001 and in the European Human Rights Reports at (2001) 34 EHRR 18.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)286130

Execution of the judgment of the European Court of Human Rights
Price against the United Kingdom

(Application No. 33394/96 judgment of 10 July 2001, final on 10 October 2001)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns degrading treatment suffered by the applicant, a four-limb-deficient thalidomide victim dependent on a wheelchair, during her custody and imprisonment, due to detention conditions which were inadequate in view of her special needs (violation of Article 3) (see details in Appendix);

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

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

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

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)286

Information about the measures to comply with the judgment in the case of
Price against the United Kingdom

      Introductory case summary

The case concerns degrading treatment suffered by the applicant, a four-limb-deficient thalidomide victim dependent on a wheelchair, during her custody and imprisonment in January 1995, due to detention conditions which were inadequate in view of her special needs (violation of Article 3).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

--

4 500 GBP

4700 GBP
(VAT included, less 5300 FRF)

8929.19 GBP (including 221.86 GBP in respect of default interest)

 

b) Individual measures

The applicant was transferred from police custody to prison on 21 January 1995 and released on 23 January 1995, in line with the remission provisions in sections 45 and 33 of the Criminal Justice Act 1991. Consequently, no other individual measure was considered necessary by the Committee of Ministers

      II. General measures

In response to the treatment received by the applicant when in custody, new guidance on the safer detention and handling of disabled persons in police custody was issued on 8 February 2006. In accordance with this guidance, the 1995 and 2005 Acts, and now the Equality Act 2010 (which replaced those two Acts with effect from 1 October 2010), the police are required to make reasonable adjustments at police stations to allow for the needs of disabled persons held in custody. The Commission for Equality and Human Rights has power to investigate contraventions of the Equality Act, and to provide assistance to individuals in legal proceedings to establish whether rights under the Act have been contravened.

The judgment of the European Court was published in the European Human Rights Reports at (2002)34 EHRR 53 and sent out to the relevant domestic authorities.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)287131

Execution of the judgments of the European Court of Human Rights
Boyle, Thompson and Bell against the United Kingdom

(Boyle, Application No. 55434/00, judgment of 8 January 2008, final on 8 April 2008;
Thompson, Application No. 36256/97, judgment of 15 June 2004, final on 15 September 2004;
Bell, Application No. 41534/98, judgment of 16 January 2007, final on 16 April 2007)

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

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

Recalling that the violations of the Convention found by the Court in these cases concern: detention decided on by a person not presenting the requisite guarantees of impartiality and independence (in the Thompson and Boyle cases; violations of Article 5, paragraph 3); lack of compensation for detention (in the Thompson case; violation of Article 5, paragraph 5); lack of independence and impartiality of a summary trial before a commanding officer in the army (in the Thompson and Bell cases, violations of Article 6, paragraph 1); and lack of access to legal assistance of one’s own choosing (in the Thompson and Bell cases; violations of Article 6, paragraph 3(c)) (see details in Appendix);

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

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

Having satisfied itself that 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 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

      - of general measures preventing similar violations;

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)287

Information on the measures to comply with the judgments in the cases of
Boyle, Thompson and Bell against the United Kingdom

Introductory case summary

The Boyle case concerns the lack of impartiality and independence of the applicant's commanding officer in the Army (CO) who ordered his pre-trial detention in 1999 on a charge of indecent assault (violation of Article 5, paragraph 3).

The Thompson case concerns the detention, summary trial and conviction of the applicant, in 1997, by his CO in the Army for absence without leave. The European Court noted that the CO decided the applicant’s suitability for pre-trial detention after charge and did not refer the decision to detain to a senior or legal officer (violation of Article 5, paragraph 3). In addition, the applicant was unable to obtain compensation for his detention in breach of the Convention, since his detention was lawful under domestic law (violation of Article 5, paragraph 5).

The Bell case concerns the summary trial and conviction of the applicant in 1997 by his CO for using insubordinate language to a superior, in proceedings conducted on the basis of the law applicable after the Armed Forces Act 1996 came into effect on 1 April 1997.

In both the Thompson and Bell cases the European Court found that the applicants had been directly subordinate to their CO. The COs were central to the prosecution of the charge against the applicants and, at the same time, sole judge in the case, giving rise to objectively justified misgivings as to their independence and impartiality (violation of Article 6, paragraph 1).

Finally, in the Thompson and Bell cases the lack of access to legal representation in the applicants' summary trial did not meet the Convention's requirement that a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (violations of Article 6, paragraph 3c).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Boyle (55434/00)

-

-

3 096 EUR

3 096 EUR
Paid on 30/06/2008

Thompson (36256/97)

-

-

5 000 EUR

5 000 EUR + 184.11 EUR interest
Paid on 27/07/2005

Bell (41534/98)

-

-

2 500 EUR

2 500 EUR
Paid on 31/05/2007

b) Individual measures

In the Boyle case, the applicant’s complaint concerned detention sanctioned by his commanding officer between 6 November and 16 November 1999. After this date the applicant’s detention was decided by another CO whose impartiality and independence was not questioned by the applicant. The applicant was released on 22 February 2000.
In the Thompson case, the applicant was released after serving 28 days' military detention. Other proceedings against him were discontinued.
In the Bell case the applicant was sentenced to seven days' detention which he served.

The European Court considered it impossible to speculate as to the outcome of the proceedings against the applicants had the violations of the Convention not occurred and accordingly found that the judgments in themselves constituted sufficient just satisfaction in respect of any non-pecuniary damage arising from the violations established.
Consequently, no other individual measure is considered necessary by the Committee of Ministers.

II. General measures

Violations of Article 5, paragraph 3:
In response to the lack of impartiality of the applicants’ commanding officers (COs), the Army Act 1955 was amended by the Armed Forces Discipline Act 2000 so that a person subject to military law who was kept in custody after being charged with an offence had to be brought before a judicial officer as soon as practicable. Those provisions have now been replaced by Chapter 2 of Part 4 of the Armed Forces Act 2006, which sets out a regime for keeping persons in custody after charge. Under the 2006 Act a person who is kept in custody after being charged with a service offence must be brought before a judge advocate, who is an independent civilian judge, as soon as practicable. The judge advocate decides whether or not to authorise keeping the person in service custody, and can order that the person is kept in custody for a period of up to 8 days. The provisions require that the decision to authorise keeping a person in custody is reviewed at regular intervals by the judge advocate.

Violation of Article 5, paragraph 5:
Under section 6(1) of the Human Rights Act 1998, which came into force in 2000, it is unlawful for a public authority to act in a way incompatible with a right guaranteed by the Convention and under section 8 of the same Act the public authority may be ordered to pay damages if a court finds that such an unlawful act has occurred (see Resolution CM/ResDH(2007)101 Bubbins against the United Kingdom application No. 50196/99).

Violations of Article 6, paragraph 1 and paragraph 3(c) (in the cases of Thompson and Bell):
i) impartial and independent tribunal:
The Army Act 1955 was amended by the Armed Forces Discipline Act 2000 which was subsequently replaced by Part 6 of the Armed Forces Act 2006. The overall effect of these provisions is that persons against whom findings have been made and punishments awarded at summary hearings have an automatic right of appeal to the Summary Appeal Court (SAC). Appeals are by way of a re-hearing before the SAC which consists of one civilian judge advocate, an officer and a third member who is either an officer or a warrant officer. The SAC’s powers of punishment are limited to penalties no more severe than that awarded by the CO at a summary hearing. A soldier is entitled to legal representation and legal aid for appeal proceedings and is informed of these rights in the Rights of a Soldier pamphlet distributed either on arrest and commencement of military custody, when charged with an offence, or before a summary hearing.
In addition where a CO decides that a matter should be dealt with summarily, he must before hearing the charge give the accused the opportunity to elect trial by the Court Martial. Where the accused elects trial by the Court Martial rather than a summary trial before the CO, the sentencing powers of the Court Martial are limited to penalties which could have been imposed by the CO for the offence. An accused is entitled to legal representation at the Court Martial.

ii) legal representation:
Although not entitled to legal representation at the summary hearing, an accused soldier is entitled to legal advice at his/her own expense, and is entitled to legal representation and legal aid for appeal proceedings (see above).

In the case of Boyle the judgment of the European Court was reported in The Times (15/01/2008), and in the All England Reports at [2008] All ER (D) 02 (Jan). The Thompson judgment was published in the European Human Rights Reports at (2005) 40 EHRR 11. The Bell judgment was published in the All England Digest at [2007] All ER (D) 62 (Jan).

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)288132

Execution of the judgments of the European Court of Human Rights
O’Donoghue and others, Clift and Richard Anderson against the United Kingdom

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”)133,

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

 

Case name (App. No.)

Judgment of

Final on

1

O’Donoghue and others (34848/07)

14/12/2010

14/03/2011

2

Clift (7205/07)

13/07/2010

22/11/2010

3

Richard Anderson (19859/04)

9/02/2010

9/05/2010

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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute each of the judgments listed in the table above;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report for each case provided by the government (see appendices);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgments;

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

      DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)288

Information about the measures to comply with the judgment in the case of
O’Donoghue and others against the United Kingdom

Execution of Judgments of the European Court of Human Rights
Action Report
O’Donoghue and Others v The United Kingdom (application no. 34848/07; judgment final on 14./03/2011) Information submitted by the United Kingdom Government on 22 July 2011

Case Summary

Case description:

The powers to operate the Certificate of Approval (COA) scheme were set out in the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 before the abolition of the scheme on 9 May 2011. The scheme required those subject to immigration control to have permission to marry from the Secretary of State before giving notice to marry to a registrar. Those marrying in the Anglican Church were exempt from the requirement.

The Applicants in O’Donoghue complained that the COA scheme violated their rights under Articles 8, 9, 12 and 13 of the Convention. They further complained of an infringement of their rights under Article 14, when read in conjunction with Articles 8, 9 and 12, on the grounds of (i) religion (the COA scheme would not have applied to them had they been willing or able to marry in the Church of England according to Anglican rites); (ii) the 2nd Applicant’s nationality; and (iii) their inability to pay the requisite fee.

The Court held that there had been a violation of the Applicants’ ECHR rights under Article 12; Article14 read together with Article 12 and Article 12 read together with Article 9 and awarded just satisfaction to the applicants.

Individual Measures

Just satisfaction:
The just satisfaction award has been paid; evidence attached

Other individual measures:
The Government considers no further individual measures are required because the applicants have now been restored to the position they would have been in but for the violation of their rights. Just satisfaction has been paid which included the cost of the Certificate of Approval fee. The couple have also already been granted a certificate of approval giving them permission to marry.

General Measures

Publication:

The judgment has been published by the British and Irish Legal Information Institute (BAILII); All England Law Reporter; The Times Law Reports and the New Law Journal. See links and citations below:

- O’Donoghue and others v United Kingdom [2010] ECHR 2022 http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/ECHR/2010/2022.html&query=34848/07&method=boolean

- O’Donoghue and others v United Kingdom [2011] All ER (D) 46 (Jan)
http://lexisweb.co.uk/cases/2010/december/odonoghue-and-others-v-united-kingdom

- The Times (Law Reports), 31 December 2011 UK violates freedom to marry right

- New Law Journal, 21 January 2011 http://www.newlawjournal.co.uk/nlj/issuearticles/7449?page=1&_%24guest=t&_%24robot=t&_%24subscriber=t&_%24userid=robot&_%24email=robot%40lexisnexis.com&_%24ipaddr=0.0.0.0&_%24acctid=ROBOT&_%24billgroupid=ROBOT&_%24acctname=&_%24billgroupname=&_%24firstname=Robot&_%24lastname=User&_%24userdata=&_%24usertypes=0&_%24authserver=uk1.lexisnexis.com

Dissemination:

The Government considers it is unnecessary to further disseminate the judgment because the objective of dissemination is to inform affected bodies to enable them to take account of the judgment in future decision-making.  As the Certificate of Approval scheme was abolished shortly after the European Court judgment, no practical purpose would be served by dissemination.

Other general measures:

The Government considers no further general measures are necessary because the UK Government abolished the Certificate of Approval scheme on 9 May 2011 by amending primary legislation using a remedial order under section 10 of the Human Rights Act 1998. This remedied any incompatibility of the ECHR identified in this case and first identified by the UK domestic courts in R (Baiai) v Secretary of State for the Home Departments [2009] 1 A.C. 287 (HL).

A copy of the final remedial order as approved by Parliament is at the link below.
http://www.legislation.gov.uk/uksi/2011/1158/made

The Government considers that all necessary measures have been taken and the case should be closed.

Appendix to Resolution CM/ResDH(2011)288

Information about the measures to comply with the judgment in the case of
Clift against the United Kingdom

Execution of Judgments of the European Court of Human Rights
Action Report
Case of Clift v The United Kingdom (application no. 7205/07; judgment final on 22/11/2010
Information submitted by the United Kingdom Government on 25 July 2011

Case Summary

Case description:
The case concerned the unjustified discrimination in the conditions for allowing early release between prisoners serving fixed-term sentences of more than 15 years and those serving shorter sentences. Under the legislation applicable at the time, prisoners serving fixed-term sentences of imprisonment of 15 years or more were required to secure, in addition to a positive recommendation from the Parole Board, the approval of the Secretary of State for early release. However, prisoners serving fixed-term sentences of less than 15 years and those serving life sentences were entitled to early release upon the positive recommendation of the Parole Board only; no Secretary of State approval was required.
On 30 April 1994 the applicant was sentenced to eighteen years' imprisonment. He became eligible for release on parole on 13 March 2002. On 25 October 2002 the Secretary of State rejected the recommendation of the Parole Board to release the applicant. He was finally released on licence in March 2004
The Court held that there had been a violation of Article 5 in conjunction with 14.

Individual Measures

Just satisfaction:
The just satisfaction award has been paid; evidence previously supplied.

Other individual measures
Mr Clift is no longer in custody. He was released on parole on 10/03/04. Damages and costs have been awarded to him for the treatment he received as a result of the procedures of his earlier parole reviews that were found by the court to have been discriminatory. Therefore the Government considers that no further individual measures are required in this case.

General Measures

Publication:
The judgment has been published in the Times Law Reports on 21 July 2010 and on line in the BAILII legal website ([2010] 1106), Lexis Library, Human Rights Law Centre, HUDOC.

Dissemination:
The judgment has been included on a number of legal databases and sources. In light of the change in legislation, the Government considers further dissemination of the judgment unnecessary.

Other general measures:
The Government has changed the applicable legislation to remove the power of the Secretary of State to override a recommendation of the Parole Board for release of any prisoner. The relevant amendment to the legislation was made by section 145 of the Coroners and Justice Act 2009. This provision transferred the responsibility for release decisions, in the case of those prisoners serving 15 years or more who are subject to the release provisions of the Criminal Justice Act 1991, to the Parole Board. This provision and the following associated amendments were commenced with effect from 2 August 2010.

Section 145 – Transfer to Parole Board of functions under the Criminal Justice Act 1991
Section 177 – Consequential etc amendments and transitional saving provisions
Section 178 – Repeals
Para 43 of Schedule 22 – Transfer of functions to Parole Board
Part 5 of Schedule 23 – Miscellaneous Criminal Justice Provisions relevant to Section 145

The effect of the above provisions is that as of 2 August 2010, the Secretary of State no longer has the power to make parole release decisions in respect of 1991 Act prisoners serving 15 years or more. She retains such power in no other cases. Therefore the discrimination found in this case cannot happen again.

The following provide links to the Coroners and Justice Act 2009 and Explanatory Notes:
http://www.legislation.gov.uk/ukpga/2009/25/contents
http://www.legislation.gov.uk/ukpga/2009/25/notes/contents

The Government considers that all necessary measures have been taken and the case should be closed.

Appendix to Resolution CM/ResDH(2011)288

Information about the measures to comply with the judgment in the case of
Richard Anderson cases against the United Kingdom

Execution of Judgments of the European Court of Human Rights
Action Report
Richard Anderson v United Kingdom (application no. 19859/04; judgment final on 9 May 2010)
Information submitted by the United Kingdom Government on 22 July 2011

Case Summary

Case description:
The case concerned the excessive length of civil proceedings from April 1997 to December 2003 before the Scottish Courts (6 years and months for 3 levels of jurisdiction) in violation of Article 6§1.
The European Court found that whilst the applicant bore some responsibility for the delay at the initial stage of the proceedings, there were periods of inactivity for which no satisfactory explanation had been given. In particular the European Court identified that the Inner House of the Court of Session did not meet its obligation to take an active role in the management of proceedings (§28).

Individual Measures

Just satisfaction:
The just satisfaction award has been paid; evidence previously supplied.

Other individual measures:
The Government considers no further individual measures are required because payment of just satisfaction in respect of non-pecuniary damage has been made, in terms of the Court’s finding that the Government was to pay the applicant, within three months from the date on which the judgment became final, the sum of EUR 1,500 in respect of non-pecuniary damage. As the Court dismissed the remainder of the applicant's claim for just satisfaction, no further payment to the applicant is due.

Any violation in respect of the applicant has ceased, because the court proceedings in the Court of Session which were the subject of his complaint have concluded. In addition, the European Court held it was not necessary to examine the applicant's complaint under Article 13 of the Convention in the particular circumstances of the instant case, and no other findings in respect of the applicant as an individual were made.

The government considers that no other individual measures appear necessary.

General Measures

Publication:
The judgment has been published in the following locations:

Case citations [2010] All ER (D) 93 (Feb) [2010] 7 E.G. 100 (C.S.) BAILII website - http://www.bailii.org/eu/cases/ECHR/2010/145.html Loaded onto Lawtel website

Journal articles/blog citations
Legal Action 2010, May, 20-25. 'Recent developments in housing law (May).'
http://scottishlaw.blogspot.com/2010/02/eu-rules-court-of-session-failed-to.html (Scottish Law Reporter blog)

Dissemination:
The judgment has been disseminated to Michael Anderson, Legal Secretary to the Lord President, Court of Session, Edinburgh, who has made the judges and senior officials of the Court aware of the judgment; and to the Scottish Court Service, the independent statutory body responsible for providing the staff, buildings and technology to support Scotland’s courts, the work of the independent judiciary, the courts’ Rules Councils and the Office of the Public Guardian.

Other general measures:
The IT function of the Scottish Court Service has implemented a new system whereby the courts administration can run a report to identify cases that have had no procedural action for a specific period of time. This will allow a decision to be made as to whether or not particular cases should be placed in front of a sheriff or judge to ascertain the present position and bring the case back on track, avoiding the delay which occurred in this case.

This is part of the implementation of better case management in terms of the Civil Courts Review in Scotland (“The Gill Review”: http://www.scotcourts.gov.uk/civilcourtsreview/index.asp).

The Government considers that all necessary measures have now been taken and the case should be closed.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)289134

Execution of the judgment of the European Court of Human Rights
Edwards and Lewis against the United Kingdom

(Application No. 39647/98, judgment of 27 October 2004 – Grand Chamber)

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

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

Recalling that the violation of the Convention found by the Court in this case concerns the applicants' right to a fair trial, due to two judicial decisions in 1995 and 1996, to withhold certain evidence from the defence in violation of the principle of equality of arms and without adequately protecting the interest of the accused in criminal proceedings (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 the United Kingdom’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

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

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

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

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

      - of general measures, preventing similar violations;

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

      DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)289

Information about the measures to comply with the judgment in the case of
Edwards and Lewis against the United Kingdom

Introductory case summary

This case concerns the violation of the applicants’ right to a fair trial due to two judicial decisions in 1995 and 1996, in which certain evidence was withheld from the defence in violation of the principle of equality of arms, and without adequately protecting the interest of the accused in criminal proceedings (violations of Article 6, paragraph 1).

The applicants argued that their criminal offences were the result of entrapment by undercover police officers. However, in both cases, the prosecution successfully applied to the courts to withhold evidence. The trial judges dismissed the applicants’ arguments on the grounds that the undisclosed evidence did not prove entrapment, that it would not assist the defence and that non-disclosure by the prosecution was justified by genuine public interest.

The European Court noted that the defence had been unable to argue the case on entrapment in full before the judges, because the evidence remained undisclosed and therefore could not be challenged, and that the same judges who decided to withhold the evidence had also decided the facts related or possibly related to the withheld evidence. The applicants had been sentenced to nine years' and four and a half years' imprisonment respectively.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

--

--

47 000 EUR

47 000 EUR

Paid on 21/12/2004

b) Individual measures

The applicants are no longer detained. According to the information received from the applicants' lawyers, following the judgment of the European Court, Mr Lewis was granted leave to appeal his conviction. The appeal was dismissed on 6 April 2005 by the Court of Appeal ([2005] EWCA Crim 859). A new application was made to the European Court in 2007 under Article 6 following the Court of Appeal’s judgment, but that application was rejected at an early stage (see application 6116/06).

Mr Edwards applied to the Criminal Cases Review Commission (CCRC) who rejected his request to have his case referred to the Court of Appeal on 28 February 2007. His request for judicial review of that decision was dismissed on 14 August 2007 by a single judge of the High Court. The applicant then applied to the full court and judgment was given on 13 October 2008 refusing his application (case reference [2008] EWHC 2389 (Admin) Case No: CO/3764/2007). A new application was made to the European Court in 2009 but that application was rejected at an early stage (see application 21566/09). Consequently, no other measures are considered necessary by the Committee of Ministers.

II. General measures

On 5 February 2004 the House of Lords gave judgment in the case of R v H and others [2004] 2 AC 134, in which it considered the question of whether the procedures for dealing with claims for public-interest immunity made on behalf of the prosecution in criminal proceedings complied with Article 6 of the Convention.

Disclosure of sensitive evidence: The House of Lord took into consideration the extensive jurisprudence of the European Court, including the present case and stated that derogation from full disclosure “may be justified but such derogation must always be the minimum derogation necessary to protect the public interest and must never imperil the overall fairness of the trial” (see R v. H, at 148). A number of general guiding principles on disclosure and the procedure which must be followed when a court is faced with an application to withhold sensitive material from the defence were set out in the decision.

The principles were summarised in the Guidance which was issued by the Director of Public Prosecutions on 13 February 2004 and circulated among lawyers, caseworkers and prosecutors. The principles were later included in Chapters 12 and 13 of the Crown Prosecution Service's Disclosure Manual issued in April 2005. Moreover, Part 5 of the Criminal Justice Act 2003 amended the disclosure regime in the Criminal Procedure and Investigations Act 1996. This latter Act gave statutory force to the prosecution's duty of disclosure. The new text requires initial and continuing prosecution disclosure of any previously undisclosed material “which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused”. The edition of the Crown Prosecution Service's Disclosure Manual issued in April 2005 supersedes all previous guidance. Along with other things it clearly sets out when the prosecutor's statutory duty to disclose is triggered, the importance of scrupulously observing that duty, and sets out the consequences of failure to do so.

The judgment of the European Court was published in the European Human Rights Law Review at (2005) 40 EHRR 24, and in The Times on 3 November 2004.

      III. Conclusions of the respondent state

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

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution CM/ResDH(2011)290135

Execution of the judgments of the European Court of Human Rights
in 7 cases against the United Kingdom

(see Appendix)

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

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

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

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

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

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

      DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)290

Information on the judgments in 7 cases against the United Kingdom

 

Case name and application number

Date of judgment

Date of final judgment

Decision to close

1

Keenan No. 27229/95

03/04/2001

03/04/2001

1043rd meeting
(December 2008)

2

Grieves No. 57067/00

16/12/2003

Grand chamber

1028th meeting
(June 2008)

3

Le Petit No. 35574/97

15/06/2004

15/09/2004

1028th meeting
(June 2008)

4

Wainwright No. 12350/04

26/09/2006

26/12/2006

1007th meeting
(October 2007)

5

Z. and others No. 29392/95

10/05/2001

10/05/2001

982nd meeting
(December 2006)

6

E. and others No.°33218/96

26/11/2002

15/01/2003

982nd meeting
(December 2006)

7

D.P & J.C No. 38719/97

10/10/2002

10/01/2003

982nd meeting
(December 2006)

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution CM/ResDH(2011)291136

Execution of the judgment of the European Court of Human Rights
Sejdić and Finci against Bosnia and Herzegovina

(Application No. 27996/06, judgment of 22/12/2009 – Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”);

Having regard to the Grand Chamber judgment of the European Court of Human Rights (“the Court”) of 22 December 2009 in the case of Sejdić and Finci against Bosnia and Herzegovina transmitted to the Committee for supervision of its execution under Article 46 of the Convention;

Recalling that in this judgment the Court:

    - found a violation of the right to free elections and discrimination against the applicants, citizens of Bosnia and Herzegovina of Roma and Jewish origin, who were ineligible to stand for election to the House of Peoples of Bosnia and Herzegovina (the second chamber of Parliament) due to the lack of affiliation with a constituent people (Bosniacs, Croats or Serbs) (violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1) and ;

    - found that the applicants were discriminated against because of their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina (the collective Head of State) due to their lack of affiliation with a constituent people (violation of Article 1 of Protocol No. 12).

Recalling that, from the beginning of its examination of this case, the Committee considered that the execution of this judgment would require a number of amendments to the Constitution of Bosnia and Herzegovina and to its electoral legislation;

Bearing in mind that, during the Ministerial Session held on 11 May 2010, the outgoing and incoming Chairpersons of the Committee made a joint declaration urging “the authorities of Bosnia and Herzegovina to bring the country’s Constitution and laws in line with the European Convention on Human Rights as a matter of priority”;

Bearing in mind further that, on 7 July 2010, on the occasion of the examination of Bosnia and Herzegovina’s honouring of its obligations and commitments, the Ministers’ Deputies urged the authorities of Bosnia and Herzegovina to bring the Constitution of Bosnia and Herzegovina in line with the Convention, in compliance with the present judgment;

Stressing that, in becoming a member of the Council of Europe in 2002, Bosnia and Herzegovina undertook to “review within one year, with the assistance of the European Commission for Democracy through Law (Venice Commission), the electoral legislation in the light of Council of Europe standards, and to revise it where necessary”137;

Noting also that the Parliamentary Assembly has periodically reminded Bosnia and Herzegovina of this post-accession obligation138;

Recalling that, in response to the judgment, the Council of Ministers and the Central Election Commission of Bosnia and Herzegovina prepared two action plans in February and March 2010 in which the authorities responsible for taking the necessary measures were identified and specific deadlines were fixed;

Regretting however that the measures envisaged in these action plans have not been taken within the deadlines set therein as a result of the absence of political consensus on the content of the constitutional and legislative amendments;

Recalling that the Committee of Ministers deeply regretted139 that the elections took place in Bosnia and Herzegovina on 3 October 2010 in accordance with the legislation which was found to be discriminatory by the Court in the present judgment;

Noting that, in response to the Committee’s repeated calls, the “Joint Interim Commission for the Implementation of the Sejdić and Finci judgment of the Parliamentary Assembly of the Bosnia and Herzegovina” was constituted following a decision adopted by the Parliamentary Assembly of Bosnia and Herzegovina at the session of the House of People held on 30 September 2011 and at the session of the House of Representatives held on 10 October 2011;

Noting in this respect that the Parliamentary Assembly of Bosnia and Herzegovina set specific deadlines to the Joint Interim Commission of 30 November 2011 for presenting amendments to the Constitution and 31 December 2011 for amendments to the electoral law;

Expressing expectation that the authorities and political leaders of Bosnia and Herzegovina will rapidly reach an agreement on the content and scope of the constitutional and legislative amendments;

Stressing that such an agreement is an indispensable condition for the execution of the present judgment and for ensuring full compliance of future elections with the Convention requirements;

Having regard to the obligation undertaken by the authorities of Bosnia and Herzegovina under Article 46 of the Convention to abide by the judgments of the Court;

        REITERATES ITS CALL ON the authorities and political leaders of Bosnia and Herzegovina to take the necessary measures aimed at eliminating discrimination against those who are not affiliated with a constituent people in standing for election to the House of Peoples and the Presidency of Bosnia and Herzegovina and to bring its constitution and electoral legislation in conformity with the Convention requirements without any further delay;

        ENCOURAGES the Joint Interim Commission to make tangible progress in its work and present amendments to the Constitution and to the electoral law, taking into consideration the relevant opinions of the Venice Commission in this regard;

        INVITES the authorities of Bosnia and Herzegovina to inform the Committee regularly of the progress achieved in the Constitutional reform, as well as the change of relevant electoral legislation.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution CM/ResDH(2011)292140

Execution of the judgments of the European Court of Human Rights
in 154 cases against the Russian Federation concerning actions of the security forces in the Chechen Republic of the Russian Federation

(see Appendix for the list of cases in the Khashiyev group)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”);

Having regard to the 154 judgments of the European Court of Human Rights (“the Court”) finding grave violations of the Convention resulting from and/or related to actions of the security forces during anti-terrorist operations which took place mainly between 1999 and 2004 in the Chechen Republic of the Russian Federation concerning unlawful killings, unacknowledged detention, disappearances, torture, destruction of property, lack of effective investigations and of effective domestic remedies in this respect;

Recalling that, since 2005, when the Court rendered the first judgments in this group, the Committee has consistently emphasised that the execution of these judgments requires the adoption of comprehensive measures in particular aimed at:

    - improving the legal and regulatory framework governing anti-terrorist activities of security forces, including the use of force and the existence of safeguards to prevent ill-treatment and disappearances;
    - ensuring effective accountability of members of the security forces for abuses committed during antiterrorist operations, including effective domestic investigations;
    - developing domestic remedies available to victims of such abuses, including compensation;
    - enhancing awareness-raising and training of members of security forces;

Recalling that, as a matter of priority, the Committee’s current assessment focuses on the effectiveness of domestic investigations as this issue is closely connected to the individual measures required by these judgments and relates to:

    - the general framework governing domestic investigations carried out in the cases which gave rise to judgments of the Court or applications before the Court;
    - the rights of victims during the pre-trial stage of criminal proceedings;
    - the remedies available to victims to complain against the ineffectiveness of domestic investigations;

Having assessed the extensive information provided by the Russian authorities on the measures taken or envisaged following the judgments of the Court, which is summarised in v