Curtea Europeana a Drepturilor Omului-update

Vazind si eu ca romanul prima decizie a curtii privitoare la Albania, mi-am adus aminte de bancurile de pe timpul lui nenea Ceasca privitoare la armata lor si plin de curiozitate, am vrut sa vad cu ce Dumnezeu au putut veni si astia in fata curtii. Surpriza a fost pe masura, pentru ca speta este interesanta (si seamana al naibii de mult cu spete romanesti asemanatoare care pot ajunge cindva in fata curtii), si impreuna cu ea sint inca citeva spete (veti vedea situatii de fapt destul de asemnatoare celor romanesti)potential interesante penrtu noi, astfel ca astazi fac o exceptie la capitolul de mai sus si "public" aproape integral un comunicat al grefei in care nu sint spete romanesti. Dar iata mai jos despre ce e vorba (din pacate iar nu am timp sa traduc, dar textul unora dintre deciziile de mai jos este accesibil si in franceza direct pe site-ul Curtii)

Qufaj Co. Sh.P.K. v. Albania (application no 54268/00)-Violation Article 6 § 1

The applicant is an Albanian company established in 1992. Following the refusal of the Municipality of Tirana to grant a building permit for land which the applicant had purchased from the Municipality and in respect of which it had obtained planning permission, the company instituted proceedings in the District Court seeking compensation in an amount of 60,000,000 leks (ALL). Its claim was dismissed, but it appealed successfully. In a judgment of 23 February 1996, which became final and enforceable, the Tirana Court of Appeal awarded the applicant the ALL 60,000,000 it had claimed.

The applicant took various steps to secure enforcement of the Court of Appeal’s judgment, in vain. Ultimately it brought proceedings in the Constitutional Court, which found that the enforcement of court decisions lay outside its jurisdiction.

Before the European Court of Human Rights, the applicant company alleged, in particular, that the failure of the Albanian authorities to comply with a final decision had infringed Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.

The Court reiterated that execution of a judgment given by any court had to be regarded as an integral part of the “trial” for the purposes of Article 6. It was not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment might be justified in particular circumstances. But the delay could not be such as to impair the essence of the right protected under Article 6 § 1.

In the case under review, in order to secure compliance with the judgment of the Tirana Court of Appeal, the applicant company had been obliged to resort to the relevant enforcement proceedings and had subsequently lodged an appeal with the Constitutional Court. In the latter connection the Court expressed the view that the Constitutional Court
was competent to deal with the applicant company’s complaint as part of its jurisdiction to secure the right to a fair trial.

At the material time the reason advanced by the national authorities for their failure to comply with the judgment had been that they were experiencing financial difficulties. However, the applicant company should not have been prevented from benefiting from the judgment in its favour on such grounds.

In its first judgment in a case concerning Albania, the Court accordingly held unanimously that there had been a violation of Article 6 § 1 of the European Convention on Human Rights and awarded the applicant company 60,000,000 leks (ALL) (the amount determined by the Tirana Court of Appeal), 70,000 Euros (EUR) for pecuniary and non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in English.)

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Fotopoulou v. Greece (no. 66725/01) Violation Article 1 of Protocol No. 1
Violation Article 13

The applicant, Aikaterina Fotopoulou, is a Greek national. She is the owner of a house at the place called “Karavostasi” on the island of Folegandros (Greece).

In 1988 a presidential decree designated Karavostasi as a “traditional village” and imposed specific conditions and building restrictions in order to preserve its character. Neighbours of the applicant, who owned a house which was originally a covered shelter where a fisherman kept his boat, began building work without planning permission. This involved building a 2.5-metre-high wall on 80-centimetre-high foundations.

The applicant, whose view of the sea was restricted by this wall, complained about the works to the local police. On 30 March 1993 the commission for the investigation of illegal construction decided that the wall should be demolished, and in May 1994 the governor of the Cyclades region granted a sum of money for the demolition work. On 22 October 1996 the Minister of the Environment and Regional Planning dismissed an appeal by Mrs Fotopoulou’s neighbours and noted that the demolition decision was final.

On 22 June 2002 the Supreme Administrative Court
dismissed an appeal by Mrs Fotopoulou’s neighbours against the annulment of the planning permission they had obtained in the meantime.

The applicant complained of an infringement of her right to peaceful enjoyment of her possessions, and of the lack of a remedy whereby she could challenge the administrative authorities’ failure to demolish an illegally erected building opposite her house. She relied on Article 1 of Protocol No. 1 to the Convention (protection of property) and Article 13 (right to an effective remedy).

The Court noted that the demolition decision taken by the commission for the investigation of illegal construction had become final with the decision of the Minister of the Environment. The administrative authorities had therefore been under an obligation to demolish the wall, but had made no attempt to do so. Moreover, the judgment given by the
Supreme Administrative Court
in 2002 had explicitly recognised that the wall in issue had been declared illegal “definitively” and that it should therefore be demolished.

The circumstances of the case showed that the administrative authorities’ refusal or failure to demolish the wall complained of, for a long period and without any good reason, had no legal basis under domestic law. The Court therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1 to the Convention.

As to the remedies available to the applicant in the face of the administrative authorities’ inertia, the Court noted that the Government had referred only to actions that could be brought against the applicant’s neighbours, not against the defaulting authorities. Even supposing that the outcome of such remedies might have been favourable to the applicant, they could not be regarded as effective for the purposes of the Convention because to set them in motion the applicant would have had to undertake fresh proceedings against the administrative authorities in question. Consequently, in the absence of remedies whereby the applicant could obtain demolition of the wall in question, the Court held unanimously that there had been a violation of Article 13 of the Convention.

Under Article 41 of the Convention (just satisfaction), the Court awarded Mrs Fotopoulou EUR 19, 823 for pecuniary damage, EUR 5,000 for non-pecuniary damage and EUR 13,864 for costs and expenses. (The judgment is available only in French.)

Papastavrou and Others v. Greece (no. 46372/99)
Just satisfaction

The applicants are 25 Greek nationals. They had been involved in a long-standing dispute with the Greek State about ownership of a piece of land in Omorphokklisia, Galatsi, included in a larger property known as the “Veikou estate” which the State had expropriated between 1923 and 1941. They alleged a violation of Article 1 of Protocol No. 1 (protection of property) in that their property had been expropriated de facto without any financial compensation.

In a judgment of 10 April 2003 the European Court of Human Rights held unanimously that there had been a violation of Article 1 of Protocol No. 1. It further held that the question of Article 41 (just satisfaction) was not yet ready for decision.

In the judgment it gave today the Court decided unanimously to award the applicants jointly EUR 250,000 EUR for pecuniary damage. (The judgment is available only in English.)

Zazanis and Others v. Greece (no. 68138/01)
Violation Article 6 § 1
Violation Article 13

The applicants, Aristomenis Zazanis, Maria Sampson and Leonidas Zazanis, are Greek nationals. They owned a piece of land in Loutraki, which was designated as building land in the town’s development plan in 1971 and was entered in the land register as forest land in 1982.

In 1992 the applicants signed a contract with a construction company to have a building several storeys high erected on their land. In July 1993 the company was granted planning permission, which was annulled by the Supreme Administrative Court in 1997 on the ground that the company had not obtained prior permission to cut down trees on the land. The company made a number of applications to that effect but permission was refused, notably on the ground that not all the relevant documents had been submitted.

The company appealed to the Supreme Administrative Court
, which held in a judgment of 17 August 2002 that all the necessary documents had been submitted and referred the matter to the administrative authorities for a decision on the application for permission to cut down the trees. In spite of that judgment, Loutraki District Council asked the company to fulfil conditions that were not laid down in the relevant legislation and reduced by half the proportion of the land on which building was permitted.

In February 2003 the Ministry of the Environment classified the land as “parkland”.

The applicants complained under Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy) of the Convention of the authorities’ refusal to comply with the Supreme Administrative Court’s judgment of 17 August 2002 quashing the decision to refuse planning permission in respect of land owned by them.

Following the Supreme Administrative Court’s judgment of 17 August 2002, the administrative authorities should have reconsidered their position on whether to grant permission to cut down trees, in accordance with the rules applicable at the time. Instead, they had asked the company to submit further documents and had added a new condition, requiring the applicants and the company to accept a different construction coefficient from that applied in the town itself. The Court considered that the fact that the town-planning department had laid down those new conditions amounted to a refusal to comply with the Supreme Administrative Court’s judgment.

Furthermore, the reclassification of the land as “parkland” by the Ministry of the Environment three years after the
Supreme Administrative Court’s judgment amounted to a formal expropriation order rendering the judgment devoid of purpose. In addition, there was no evidence that the authorities actually intended to expropriate the land in question, since no steps had been taken to compensate the applicants. The Court accordingly held unanimously that there had been a violation of Article 6 § 1.

Having examined, in particular, the remedies referred to by the Government, the Court considered that there had been a violation of Article 13 of the Convention in the present case on account of the absence of a domestic remedy whereby the applicants could have obtained the enforcement of the Supreme Administrative Court’s judgment.

Under Article 41 of the Convention, the Court awarded the applicants jointly EUR 30,000 for non-pecuniary damage. (The judgment is available only in French.)

Pravednaya v. Russia (no. 69529/01) Violation Article 6 § 1
Violation Article 1 of Protocol No. 1

The applicant, Lidiya Andreyevna Pravednaya, is a Russian national who was born in 1936 and lives in Novosibirsk. She has been in receipt of an old-age pension since 1991.

The applicant applied to the Russian courts to contest the manner in which her pension was to be recalculated. The Zayeltsovskiy District Court found in her favour on 21 October 1999 and its judgment was upheld on appeal. The pension-fund agency in question appealed, requesting reconsideration of the District Court’s judgment on account of the discovery of new circumstances, namely an instruction by the Ministry of Labour and Social Development. In a judgment that contained no reference to the instruction, the appellate court upheld the District Court’s judgment.

In August 2000 the agency submitted a further application for reconsideration of the judgment of 21 October 1999 on account of the discovery of new circumstances. After a fresh examination of the case on 12 February 2001 the District Court, applying the instruction in question, dismissed the applicant’s claim.

Relying on Article 6 § 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property), the applicant alleged, in particular, that in their reexamination of a judgment given in her favour, the judicial authorities had abused the procedure for reconsidering judgments on the discovery of new evidence.

The Court noted that the agency had first requested the re-examination of the case in January 2000. Since the appellate court’s judgment had not contained any reference to the instruction, there was nothing to suggest that the agency had relied on it. Accordingly, the agency’s second request to reopen the proceedings had essentially been an attempt to submit new arguments on points which it had apparently forgotten to raise on appeal. The Court therefore considered that the agency’s request had been an “appeal in disguise”.

In granting the agency’s request, the District Court had infringed the principle of legal certainty and the applicant’s right to a court. The Court therefore held unanimously that there had been a violation of Article 6 § 1.

The Court further considered that by depriving the applicant of the right to receive a pension in an amount determined in a final judgment, the State had upset the fair balance that had to be struck between the interests at stake. It accordingly held unanimously that there had been a violation of Article 1 of Protocol No. 1. (The judgment is available only in English.)

Prokopovich v. Russia (no. 58255/00) Violation Article 8

The applicant, Margarita Semenovna Prokopovich, is a Russian national, who was born in 1940 and lives in Vladivostok.

In 1988 the applicant and her partner moved into a flat together. They never married, but from 1988 onwards they lived together as husband and wife. The applicant however kept her residence registration at her old address. In August 1998, while the applicant was staying in their country cottage, her partner died in the flat. The applicant only learnt of his death two days later, when he had already been buried in the presence of his son and his two sisters.

On 2 September 1998 the applicant filed a request with the housing maintenance authority to be given an occupation certificate for the flat. Her request was refused because on 1 September 1998 an occupation certificate had already been issued to the head of the local police department who was also the hierarchical superior of her deceased partner’s son.

On 4 September 1998, on returning to the flat, the applicant found that the door had been broken open and that books and other household items were being loaded onto a lorry. Once the removal was completed, the applicant was told to vacate the premises immediately. When she refused to comply with the request, she was thrown out of the flat by force. The door was replaced and she was not given keys.

The applicant unsuccessfully sought to institute criminal proceedings against, among others, the new occupier of the flat. At the same time she filed a civil action against the Vladivostok City Council and the new occupier. The District Court dismissed her action, finding in particular that her residence was of a temporary nature. Statements provided by five neighbours to the effect that she and her partner had maintained a joint household were held not to be sufficient evidence. This judgment was subsequently confirmed by the
Primorskiy Regional Court. The applicant’s requests for supervisory review were rejected.

The applicant complained under Article 8 (right to respect for family life) of the Convention that her eviction from her late partner’s flat had been unlawful.

Having regard to the co-existence of convincing, concordant and unrebutted factual circumstances, the Court found that the applicant had sufficient and continuing links with her partner’s flat for it to be considered her “home” for the purposes of Article 8 of the Convention.

The applicant’s eviction from the contested flat by State officials had constituted an interference with her right to respect for her home by a public authority. For such interference to be permitted under Article 8 § 2 of the Convention it had, among other things, to be “in accordance with the law”. Yet Article 90 of the relevant Housing Code permitted eviction only on the grounds established by law and only on the basis of a court order. That provision introduced an important procedural safeguard against arbitrary evictions and its wording permitted no exceptions. The Government had moreover conceded that the procedure established by Article 90 of the Housing Code should have been followed in the applicant’s case, even though her residence had not been legally established. The Court could not discern any circumstances that could have justified in this case a departure from the normal procedure of eviction and the remarkably hasty re-allocation of the flat to a police officer just seven days after the death of the former tenant.

It followed that the applicant’s eviction could not be considered to have been “in accordance with the law”.

The European Court of Human Rights accordingly held unanimously that there had been a violation of Article 8 of the Convention and awarded the applicant EUR 6,120 for non-pecuniary damage and for costs and expenses. (The judgment is available only in English.)

Wasserman v. Russia (no. 15021/02)
Violation Article 6 § 1
Violation Article 1 of Protocol No. 1

The applicant, Kim Wasserman, is an Israeli national, who was born in 1926 and lives in Ashdod, Israel.

On a visit to Russia in 1998 the customs authorities fined the applicant an amount equal to the sum of 1,600 US dollars which had he had omitted to declare. The applicant lodged a civil action in the Khostinskiy District Court of Sochi, which found in his favour and ordered the Treasury to repay the amount forfeited in roubles. This judgment was upheld on appeal. Following representations by the applicant and further proceedings, the District Court ordered the Federal Treasury in February 2001 to transfer USD 1,600 to the applicant’s bank account in Israel. This decision was not appealed and became final on 1 March 2001. Subsequently the applicant made several complaints about the non-enforcement of the judgment and in 2003 brought a civil action against the competent office of court bailiffs. Those proceedings are still pending.

The applicant complained that the respondent State failed to enforce a final judicial decision in his favour and that the failure to honour a judgment debt interfered with his property rights. He claimed a breach of Article 6 § 1 (right to a fair hearing) of the Convention and Article 1 of Protocol No. 1 (protection of property) to the Convention.

As regards Article 6 § 1, the Court noted the Government’s admission that the writ of execution had been lost in the process of its transfer from the Moscow bailiffs to the Sochi office. However, the logistical difficulties experienced by the State enforcement services could not serve as an excuse for not honouring a judgment debt. The respondent Government had not provided any explanation as to why the applicant’s complaints about non-enforcement of the judgment had not prompted the competent authorities to investigate the matter and to ensure that the enforcement proceedings were brought to successful completion. By failing for years to take the necessary measures to comply with the final judicial decision in the present case, the Russian authorities had deprived the provisions of Article 6 § 1 of all useful effect.

As regards Article 1 of Protocol No. 1, the Court found that the decision of February 2001 provided the applicant with an enforceable claim, namely to have the amount of USD 1,600 credited to his bank account in Israel. But the applicant had not received from the State the judgment debt as soon as it became enforceable or even within the time-limit set in the domestic law. Enforcement proceedings had been instituted and subsequently abandoned due to the loss of the writ of execution within the machinery of the court bailiffs’ service. The impossibility for the applicant to have the judgment enforced had constituted an interference with his right to peaceful enjoyment of his possessions, for which the Government had failed to advance any plausible justification.

The Court accordingly held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention and awarded the applicant EUR 300 for pecuniary damage, EUR 3,600 for non-pecuniary damage and EUR 600 for costs and expenses. (The judgment is available only in English.)