ECHR: Chamber judgments of 29.07.2008

Press release issued by the Registrar

Chamber judgments concerning

Albania, Andorra, Finland, Georgia, Italy, Moldova, Poland,

Romania and Turkey

The European Court of Human Rights has today notified in writing the following 28 Chamber judgments, none of which are final.

One repetitive case and length-of-proceedings cases, with the Court's main finding indicated, can be found at the end of the press release.

Violation of Article 6 § 1 (fairness)

No violation of Article 4 of Protocol No. 7

Xheraj v. Albania (application no. 37959/02)

The applicant, Arben Xheraj, is an Albanian national who was born in 1970 and is currently serving a 16 year sentence in Vicenza Prison (Italy) for drug trafficking.

Acquitted of murder in Albania on 14 December 1998, Mr Xheraj complained about the unfairness of proceedings to review that decision, which was final, following a request by the Durrës Court of Appeal Prosecutor for leave to appeal out of time as shortcomings had been noted on the part of the district prosecutor and the victim's family had not been properly informed about the acquittal proceedings. The applicant also complained that the ensuing Supreme Court's decision to quash his acquittal represented a second criminal sanction for the same offence. He relied, in particular, on Article 6 § 1 (right to a fair trial) and Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the European Convention on Human Rights.

The European Court of Human Rights reiterated that, while Article 4 of Protocol No. 7 to the Convention prohibited a second prosecution or trial, it allowed for the reopening of a trial in exceptional circumstances, if for example new evidence or a fundamental defect in the previous proceedings had been discovered. In the applicant's case, the ultimate effect of the leave to appeal out of time had been to reopen the proceedings, quash the acquittal decision and determine the criminal charge in a new decision, which had amounted to a form of continuation of the previous proceedings rather than an attempted second trial. The Court therefore held unanimously that there had been no violation of Article 4 of Protocol No. 7 (right not to be tried or punished twice). However, it found that, by granting the prosecutor's request for leave to appeal out of time against the acquittal decision, the Supreme Court had infringed the principle of legal certainty and therefore held unanimously that there had been a violation of Article 6 § 1. In conclusion, the Court considered that the most appropriate form of redress for the applicant would be for his final acquittal of 14 December 1998 to be confirmed by the authorities and his conviction in breach of the Convention to be erased with effect from that date. Mr Xheraj was awarded 2,000 euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)

Violation of Article 6 § 1 (fairness)

Vidal Escoll and Guillan Gonzalez v. Andorra (no. 38196/05)

The applicants are Josep Vidal, an Andorran national, and José Guillán González, a Spanish national. They were born in 1942 and 1944 respectively and live in Escaldes-Engordany (Andorra).

The applicants own two houses on a housing estate in the municipality of Escaldes-Engordany. They asked the Andorran courts to set aside the planning permission which the municipality of Escaldes-Engordany had granted to a company in respect of plans to build two blocks of flats near their homes on the ground of illegality. The High Court of Justice gave judgment in their favour on 28 May 2003. They made several applications to the courts to obtain execution of the judgment, and in particular the demolition of the parts of the buildings above the maximum authorised height. In December 2004 the Constitutional Court ordered the execution of the judgment, but this had no effect. In concurrent proceedings the municipality sought to expropriate part of the property of each applicant as part of a plan to widen the estate's access road. Considering that these proceedings were exclusively aimed at preventing execution of the judgment of 28 May 2003, the applicants applied to the Constitutional Court, which in April 2005 found that the applicants' right to have the illegally built parts of the relevant blocks demolished had become a right to compensation. The applicants complained of the impossibility of obtaining execution of the judgment in their favour, criticising both the passivity of the domestic authorities concerning compliance and the expropriation proceedings brought with a view to preventing execution. They relied on Article 6 § 1 (right to a fair trial).

The Court noted that after 28 May 2003 the municipality should have taken the necessary measures to comply with the court's decision. But the judicial decisions in the applicants' favour had been deprived of all effect by the subsequent regularisation of the situation of the illegally built blocks through the expropriation of part of each applicant's property. In addition, the Court considered that the decision to expropriate the applicants' property could not be regarded as an exceptional situation justifying failure to execute a final judgment. It further noted that the Andorran Government had not established that the applicants had been granted the compensation they were intended to receive. It accordingly held unanimously that there had been a violation of Article 6 § 1 and awarded each of the applicants EUR 40,000, to cover all heads of damage, and EUR 10,000 for costs and expenses. (The judgment is available only in French.)

Violation of Article 6 § 1 (fairness)

S.H. v. Finland (no. 28301/03)

The applicant, S.H., is a Finnish national who was born in 1952 and lives in Porvoo (Finland).

The case concerned the applicant's complaint about the unfairness of insurance proceedings with regard to an accident pension, notably that she was denied the opportunity of commenting on two medical opinions included in her case file. She relied on Article 6 § 1 (right to a fair hearing) of the Convention.

The Court noted that the two medical opinions had not been communicated to the applicant and that she had therefore not been able to participate properly in the insurance proceedings. It therefore held unanimously that there had been a violation of Article 6 § 1 and awarded S.H. EUR 2,500 in respect of non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available only in English.)

No violation of Article 3 (treatment)

Violation of Article 3 (investigation)

Gharibashvili v. Georgia (no. 11830/03)

The applicant, Robert Gharibashvili, is a Georgian national who was born in 1948 and is currently serving a 13 year sentence in Tbilisi No. 1 Prison (Georgia) for raping a 14 year old girl.

The case concerned Mr Gharibashvili's allegation that, while in custody in May 2001, he was ill-treated by the police in order to obtain a confession about the rape and that the Georgian authorities failed to effectively investigate that allegation. He relied on Article 3 (prohibition of inhuman or degrading treatment).

In view of the meagre medical material available, the Court could not, on the sole basis of the applicant's submissions, establish beyond reasonable doubt that he had been ill-treated in police custody. It therefore held unanimously that there had been no violation of Article 3.

However, the Court considered that entrusting the preliminary enquiry with Rustavi District Prosecutor's Office, who was responsible for the investigator accused of ill-treating the applicant, called into question the independence of the decision not to prosecute. Furthermore, that investigation had lacked the required thoroughness as, in particular, the applicant himself had never been interviewed. Even though the General Prosecution Office had opened a criminal case in January 2006, that had been done almost two years after the applicant had lodged his request to that end and only after the European Court had communicated the applicant's complaint to the Georgian Government. Moreover, the ensuing investigation had not been effective either: notably, the witnesses identified by the applicant had not been questioned and the applicant had had no confrontation with those he had incriminated of ill-treatment. Lastly, the Court criticised the fact that the termination of that investigation had been upheld by the Georgian courts without holding any oral hearings. Given the shortcomings in those investigations, the Court concluded that there had been a violation of Article 3. (The judgment is available only in English.)

No violation of Article 10

Flux v. Moldova (No. 6) (no. 22824/04)

The applicant, Flux, is a newspaper based in Chişinău.

In February 2003 the newspaper published an article about Spiru Haret High School in which, having received an anonymous letter from a group of students' parents, it alleged that the school's principal had misappropriated school funds and taken bribes in exchange for enrolling children in his school. The case concerned the applicant newspaper's complaint about the ensuing civil proceedings brought against it for defamation of the school principal. The applicant newspaper relied on Article 10 (freedom of expression).

The Court noted the serious accusations against the principal and the fact that the newspaper had not carried out any kind of investigation into the matter, including trying to contact the school principal to ask his opinion on the accusations. Moreover, the newspaper had refused the principal's right to publish a reply. Stressing that the right to freedom of expression did not give newspapers an absolute right to act in an irresponsible manner and make accusations with no factual basis, without even offering the possibility to refute them, the Court found that the applicant newspaper had blatantly disregarded the duties of responsible journalism. It therefore held by four votes to three that there had been no violation of Article 10. (The judgment is available only in English.)

Violation of Article 5 § 3

Choumakov v. Poland (no. 33868/05)

Czuwara v. Poland (no. 36250/06)

Violation of Article 5 § 3

Violation of Article 8

Ochlik v. Poland (no. 8260/04)

Oleg Choumakov is a Russian national who was born in 1971 and has been detained pending trial in Gdańsk Detention Centre since May 2003 on suspicion of murder and robbery.

Ewa Mirosława Czuwara is a Polish national who was born in 1959 and lives in Warsaw. She was arrested in June 2003 on charges of fraud. Released in December 2006, the proceedings against her are still pending.

Aleksander Ochlik is a Polish national who was born in 1970 and lives in Warsaw. He was arrested in July 2001 on suspicion of burglary and robbery and was convicted as charged in August 2004.

Relying on Article 5 § 3 (right to liberty and security), all the applicants complained about the excessive length of their pre-trial detention. In the case of Ochlik, the case also concerned the authorities' alleged censorship of the applicant's correspondence, in breach of Article 8 (right to respect of correspondence).

The Court held unanimously that in all three cases there had been a violation of Article 5 § 3 on account of the excessive length of the applicants' pre-trial detention which had so far lasted almost four years as regards Mr Choumakov, three years and almost seven months as regards Ms Czuwara and just over three years as regards Mr Ochlik. The Court further held unanimously that there had been a violation of Article 8 on account of the interference with Mr Ochlik's correspondence with the Court. In respect of non-pecuniary damage, Mr Choumakov was awarded EUR 1,500 and Ms Czuwara EUR 2,500. (The judgments are available only in English.)

Two findings of no violation of Article 6 § 1 (length and fairness)

Violation of Article 6 § 1 (fairness)

Balcan v. Romania (no. 37380/03)

The applicant, Ion Balcan, is a Romanian national who was born in 1958 and lives in Galaţi (Romania).

In July 2002 his home became unfit for habitation as a result of work carried out by the local authorities in neighbouring streets to lay new drains. He sued the Galaţi Town Council, the Building Inspectorate and the companies which had carried out the work, seeking an order requiring them to rebuild his house. On 22 March 2005 the Galaţi Court of Appeal gave judgment in the applicant's favour. On 2 September 2005, in proceedings brought by the applicant under the urgent procedure, the debtors were ordered to pay him damages for failure to execute the judgment of 22 March 2005. After being rebuilt, the house was handed back to Mr Balcan on 29 May 2007.

The applicant complained in particular of the length of the proceedings and of the failure to execute final court decisions in his favour. He relied on Article 6 § 1 (right to a fair trial within a reasonable time), Article 8 (right to respect for private and family life) and Article 1 of Protocol No. 1 (protection of property).

Having regard to the circumstances of the case, particularly the fact that there had been no long periods of total inactivity imputable to the authorities, the Court considered that the length of the proceedings had not been unreasonable and accordingly held that there had been no violation of Article 6 § 1.

The Court held unanimously that there had been no violation of Article 6 § 1 as regards the judgment of 22 March 2005, which had been executed in full on 29 May 2007. As to the judgment of 2 September 2005, the Court considered that it had been executed by the companies that had carried out the work and by the Building Inspectorate, as they had paid their debts to the applicant. It therefore likewise held that there had been no violation of Article 6 § 1 in that respect. However, it considered that the part of the latter judgment concerning the municipal council had not been executed and unanimously held that there had been a violation of Article 6 § 1.

Lastly, the Court ruled that it was not necessary to examine separately the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1. It awarded the applicant EUR 2,000 to cover all heads of damage and EUR 400 for costs and expenses. (The judgment is available only in French.)

Violation of Article 1 of Protocol No. 1

Moldoveanu v. Romania (no. 13386/02)

The applicant, Victor Moldoveanu, is a Romanian national who was born in 1942 and lives in Bucharest. He was formerly the captain of a ship owned by the national shipping company Navrom SA Constanţa ("CNM Navrom").

The applicant complained of the impossibility of obtaining payment of a debt corresponding to arrears of pay following the opening of liquidation proceedings in respect of CNM Navrom. He relied in particular on Article 1 of Protocol No. 1 (protection of property).

The Court considered that the fact that judicial liquidation proceedings were pending in respect of CNM Navrom, a State company, could not justify the failure over a period of more than eight years to pay the applicant the sum awarded to him in a final judgment. It accordingly held unanimously that there had been a violation of Article 1 of Protocol No. 1 and awarded Mr Moldoveanu EUR 19,000 for pecuniary damage, EUR 3,000 for non-pecuniary damage and EUR 100 for costs and expenses. (The judgment is available only in French.)

Repetitive cases

The following cases raise issues which have already been submitted to the Court.

Violation of Article 6 § 1 (fairness)

Mitrea v. Romania (no. 26105/03)

The Court found the above violation in this case concerning the quashing by means of an extraordinary appeal of a final decision in the applicant's favour.

Violation of Article 1 of Protocol No. 1

Oancea and Others v. Romania (no. 5984/02)

The Court unanimously found the above violation on account of the impossibility for the applicants to dispose of a property that had been resold to them and to obtain the rent due for it.

Violation of Article 6 § 1 (length)

Violation of Article 1 of Protocol No. 1

Ocneanu v. Romania (no. 32019/03)

The Court unanimously found the above violations on account of the partial and belated execution of a final judgment in the applicant's favour.

Two violations of Article 6 § 1 (fairness)

Teodorescu v. Romania (no. 29762/02)

The Court found the above violations, firstly on account of the administrative authorities' failure to execute a final judgment in the applicant's favour, and secondly because the judgment concerned had been set aside following an appeal by the Procurator General.