Human Rights in Europe

Transcription

1 Human Rights in Europe Legal Bulletin Issue 58 October 2004

2 AIRE Centre London Editors: Nuala Mole Biljana Braithwaite Assistant editor: Catharina Harby Printout (Serbian/Bosnian/Croatian):7600 Printout (Albanian):1200 Printout (Polish):600 Printout (Moldovan):500 Printout (Georgian):500 The production of this publication is supported by The Westminster Foundation for Democracy, the Council of Europe and the UK Department for Constitutional Affairs This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the editors.

3 The applicant association denied right of access to a court in violation of Article 6 1 JUDGMENT IN THE CASE OF ZWIAZEK NAUCZYCIELSTWA POLSKIEGO v. POLAND 1 (application no /98) 1. Principal facts 21 September 2004 Związek Nauczycielstwa Polskiego, a Polish association, was allocated an expropriated property in In 1992 the Warsaw Property Commission returned the property to its former owner, a religious association, awarding the applicant association 420,353,658 old Polish zloty (42,035 new zlotys) in compensation. The applicant association filed an action against the State Treasury with Regional Court, which increased the amount awarded to 546, new zlotys. However, on appeal, the Supreme Court found that, following the Property Commission s decision, the State Treasury had ceased to own the property and that there were therefore no grounds on which a claim against the Treasury could be made. The regional court s decision was consequently quashed and the applicant s action dismissed. 2. Decision of the Court The applicant association complained that it was effectively denied access to a court to contest the amount awarded, which covered only a fraction of the costs it had incurred in maintaining and developing the building. It relied on Article 6 1 (access to court) and Article 13 (right to an effective remedy). Article 6 and Article 13 The Court noted that, in view of the Supreme Court s resolution, it was not open to the applicant association to file a claim against the State Treasury with a civil court. Nor had it been shown by the Polish Government that the applicant association would have been able to file a claim with a court against the original and now also current owner of the property, the religious association. The Supreme Court s resolution therefore left the applicant without any procedural means of vindicating its rights. The Polish Government had not persuaded the Court that the aim of protecting the State from financial claims arising out of past expropriations could justify such a significant limitation of the applicant s right to have its claims examined by a court. 1 This judgment is not final. Article 43 of the European Convention on Human Rights provides that, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

4 The applicant association had incurred considerable expenditure in respect of the property at issue, given that it had been using and maintaining it for 25 years. To restrict access to a court in respect of claims concerning outlays for maintenance and renovation of the property had to be considered disproportionate. In the proceedings before the property commission, the applicant association was also misled as to the possibility of pursuing its civil claims before a court. Had it been made clear from the outset that it was not entitled to sue in a civil court to recover its outstanding claims, it might reasonably be assumed that the applicant association would have argued its claim before that commission even more vigorously and, in consequence, might have stood a better chance of recouping a greater proportion of its pecuniary claims. Concluding that the applicant association was denied a right of access to a court in respect of its claim for reimbursement of the outlays it had incurred, the Court held that there had been a violation of Article 6 1 and that it was not necessary to examine the complaint raised under Article 13. Article 41 The Court awarded the applicant association EUR 10,000 for non-pecuniary damage and EUR 916 for costs and expenses. 3. Comment The Court has during the past ten years examined numerous cases originating from central and eastern Europe and the former Soviet Union. In these cases the applicants have alleged that the expropriation of their property during communist era constituted a violation of the European Convention on Human Rights. A state party can only be held responsible under the Convention for events that have taken place after the date of ratification, and therefore this type of application was repeatedly declared inadmissible ratione temporis. However, if there have been proceedings in the domestic courts with regard to the property in question after the ratification date the Court may examine the case under the Article 6 and sometimes also under the Article 1 of Protocol 1. The applicant association in this case is in different position, in that it had been handed over the use of a property, which had been expropriated from the church. The property was later returned to the church, and the issue at stake was whether the applicant had had access to a court to challenge the decision concerning the reimbursement of expenses incurred in connection with construction work that had been carried out. Having found a violation of Article 6, the Court considered that it was not necessary to examine the complaint under Article 13 as well. It is interesting to note how the Court calculated the amount of just satisfaction ordered to be paid to the applicant association under Article 41. The applicant had claimed pecuniary damages representing the amount of outlays for which it considered it should be reimbursed. The Court, however, pointed out that it could not speculate what the outcome of possible domestic proceedings with regard to reimbursement of outlays would have been. It could award compensation for the

5 breach of the Convention, the right of access to court, only. It considered that the applicant had suffered a loss of opportunity and ordered the Government to pay the association 10,000.

6 Revision of the Court s judgment on account of discovery of a new fact REVISION IN THE CASE OF STOICESCU v. ROMANIA 23 [2] (application no /96) 21 September Principal facts Stefan Stoicescu is a Romanian national who was born in 1940 and lives in Bucharest. In his capacity as heir, he brought an action for restitution of a house in Bucharest, which had belonged to his aunt and had been nationalised by the State in Relying on Article 6 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property), the applicant complained, among other things, of the national courts refusal to return the building in question to him. In a judgment of 4 March 2003 a Chamber of the Court held that there had been a violation of Article 6 1 of the Convention on account of the lack of a fair hearing and the denial of access to court, and a violation of Article 1 of Protocol No. 1. The Court ordered the Romanian State to return the property in question to the applicant or, failing that, to pay him EUR 270,000 for pecuniary damage. It also awarded him EUR 6,000 for non-pecuniary damage. 2. Revision of the Court s judgment The Romanian Government requested revision of the Court s judgment of 4 March 2003 on account of the discovery of a new fact, namely that the applicant had lost his status as heir when his certificate of inheritance was declared null and void following an application by a third-party who inherited under the terms of a will. The Court noted that following proceedings in the Romanian courts between 1995 and 1999 the applicant s certificate of inheritance, which formed the basis of his claim for the return of the property, had been declared null and void. That decision could decisively affect the admissibility decision and the judgment that had been handed down by the Court in the case in 2000 and The Court considered that, due to the lack of a computerised database of pending cases in Romania at the material time, the Romanian Government could not reasonably have been aware of events. However, Mr Stoicescu had been involved in the proceedings concerning the validity of his certificate of inheritance for over seven years and could have informed the Court of the position before it gave its judgment, but had knowingly declined to do so. 2 This judgment is not final, see fn.1. 3[2] Rule 80 of the Rules of Court provides that a party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment.

7 Since 20 May 1999, when the Bucharest Court of Appeal declared his certificate of inheritance null and void, Mr Stoicescu had lost his status as his aunt s heir and his right to the return of the property. In those circumstances, he could no longer claim to be a victim, within the meaning of the Convention, of a violation of his rights. Accordingly, the Court declared the Romanian Government s application for revision admissible. Consequently, it declared Mr Stoicescu s application inadmissible and revised the judgment of 4 March 2003 in full. 3. Comment Rule 80 permits the Court to do something which it maintains national courts should NOT do - that is to revise judgements after they have become final. Readers should however be aware that requests for revision of judgments under Rule 80 of the Court s Rules of Procedure are very rare. Fewer than ten have been decided in the past decade. Most of these requests relate to the death of the applicant between the delivery of the judgment and its execution by the state. In some states a fresh judgment of the ECtHR is required before the compensation can be paid to the heirs. Successful requests (other than in death cases) are even rarer. The 11 th Protocol to the Convention, which came into force in November 1998, changed the conditions for the revision of old judgments. The new rule not only requires, as the old rule did, that the information was not actually known to the party seeking revision, but also that it could not reasonably have been known to that party. In the present case the Government claimed to have become aware of the new information three days after the judgement was delivered. They did not, however, submit the information to the Court immediately, or even before the judgment became final three months after it had been delivered. They waited until the six month period set out in the Rule 80 had almost elapsed before informing the Court. The Court s Rules impose no time limit either from the date of the judgement, or from the date of it becoming final for requests for revision. Theoretically, such requests could be submitted many years after a judgment had become final so long as the six month rule noted above is respected. It is unclear what the situation would be if the Committee of Ministers had already adopted a final resolution in the case.

8 Former KGB officers banned from seeking employment in private sector in violation of the Convention JUDGMENT SIDABRAS AND DŽIAUTAS v. LITHUANIA 4 (application nos /00 and 59330/00) 27 July Principal facts The applicants, Juozas Sidabras and Kęstutis Džiautas, are both Lithuanian nationals, born in 1951 and 1962 and living in Lithuania. They both worked for the Lithuanian branch of the KGB (the Soviet Security Service), Mr Sidabras from 1975 to 1986 and Mr Džiautas, from 1985 to After Lithuania declared its independence in 1990, Mr Sidabras worked as a tax inspector with the Inland Revenue. From 1991 Mr Džiautas worked as a prosecutor at the Office of the Prosecutor General of Lithuania, investigating organised crime and corruption cases in particular. In May 1999, the applicants were found to have the status of former KGB officers and to be subject to the employment restrictions imposed by Article 2 of the Law on the Evaluation of the USSR State Security Committee and the Present Activities of Permanent Employees of the Organisation, adopted on 16 July 1998, which entered into force on 1 January 1999 (the 1999 Act). As a result of these restrictions, both applicants were dismissed from their posts and banned from applying for publicsector and various private-sector posts from They both brought an administrative action pleading that their dismissal was unlawful. Mr Sidabras claimed that he had only been engaged in counter-intelligence and ideology while working at the KGB. Mr Džiautas claimed that, from 1985 to 1990, he had only studied at a special KGB school in Moscow and that, in , he had worked at the KGB as an informer for the Lithuanian security intelligence authorities and that he should therefore be entitled to benefit from the exceptions allowed under the 1999 Act. On 9 September 1999, the Higher Administrative Court held that Mr Sidabras s dismissal had been justified. His appeals against that decision failed. On 6 August 1999, the Higher Administrative Court granted Mr Džiautas s claim and reinstated him. However, on 25 October 1999, on an appeal by the security intelligence authorities, this judgment was quashed by the Court of Appeal. Mr Džiautas appealed unsuccessfully to the Supreme Court. 4 This judgment is not final, see fn.1.

9 2. Decision of the Court The applicants complained that being banned from finding employment in the private sector from on the ground that they had been former KGB officers was in breach of Articles 8 and 14. They also complained, under Articles 10 and 14, about the employment restrictions imposed on them and their dismissals. Article 14 taken in conjunction with Article 8 Applicability The Court observed that the applicants were treated differently from other people in Lithuania who had not worked for the KGB, and who as a result had no restrictions imposed on them in their choice of professional activities or in relation to their employment prospects on the ground of their loyalty or lack of loyalty to the State. The Court noted that the ban on the applicants engaging in professional activities in various private-sector spheres until 2009 had affected their ability to develop relationships with the outside world to a very significant degree, which had created serious difficulties for them in relation to earning their living, with obvious repercussions on their enjoyment of their private lives. Following the publicity surrounding the adoption of the Act and its application to them, they had also been subjected to daily embarrassment as a result of their past activities. That situation undoubtedly affected both their reputation and the enjoyment of their private life. They were effectively marked in the eyes of society on account of their past association with an oppressive regime. The Court therefore considered that the impugned ban affected, to a significant degree, the possibility for the applicants to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their private life within the meaning of Article 8. It followed that Article 14 was applicable in the circumstances of this case taken in conjunction with Article 8. Compliance The Court noted that the Act was intended to ensure the proper functioning of national security and of the educational and financial systems and that the reason for the imposition of employment restrictions was not the applicants KGB history as such, but their lack of loyalty to the State. The Court accepted that activities of the KGB were contrary to the principles guaranteed by the Lithuanian Constitution or indeed by the European Convention on Human Rights. Lithuania wished to avoid a repetition of its previous experience by founding its State, among other things, on the belief that it should be a democracy capable of defending itself. It had to be noted also that similar systems had been established in a number of other States which had ratified the Convention, which had successfully emerged from totalitarian rule. The Court therefore accepted that the restriction of the applicants employment prospects under the 1999 Act, and hence the difference of treatment applied to them, pursued the legitimate aims of the protection of national security, public order, the economic well-being of the country and the rights and freedoms of others.

10 The Court noted that the applicants employment prospects were restricted not only in the State sector, but also in various spheres of the private sector. The requirement of an employee s loyalty to the State was an inherent condition of employment with State authorities responsible for protecting and securing the general interest. However, such a requirement was not inevitably the case for employment with private companies. Although the economic activities of private-sector actors undoubtedly affected and contributed to the functioning of the State, they were not depositaries of the sovereign power vested in the State. Moreover, private companies might legitimately engage in activities, notably financial and economic, which competed with the goals fixed for public authorities or State-run companies. For the Court, State-imposed restrictions on the possibility for a person to find employment with a private company for reasons of lack of loyalty to the State could not be justified from the Convention point of view in the same manner as restrictions governing access to their employment in the public service, regardless of the private company s importance to the State s economic, political or security interests. Furthermore, the Court could not overlook the ambiguous manner in which the Act dealt with, on the one hand, the question of the applicants lack of loyalty and, on the other hand, the need to apply the restrictions to employment in certain private-sector jobs. With the exception of references to lawyers and notaries, the Act contained no definition of the specific jobs, functions or tasks which the applicants were barred from holding. The result was that it was impossible to ascertain any reasonable link between the positions concerned and the legitimate aims sought by the ban on holding those positions. In the Court s view, such a legislative scheme had to be considered to lack the necessary safeguards for avoiding discrimination and for guaranteeing an adequate and appropriate judicial control of the imposition of such restrictions. The Court also considered relevant the fact that the 1999 Act came into effect almost a decade after Lithuania had declared its independence, as a result of which the restrictions on the applicants professional activities were imposed on them 13 years (Sidabras) and 9 years (Džiautas) after their departure from the KGB. The Court concluded that the ban on the applicants seeking employment in various private-sector spheres constituted a disproportionate measure, even having regard to the legitimacy of the aims pursued by that ban. The Court therefore held that there had been a violation of Article 14 taken in conjunction with Article 8. Article 8 In view of its finding of a violation of Article 14 taken in conjunction with Article 8, the Court held that it was not necessary also to consider whether there had been a violation of Article 8 taken on its own. Articles 10 and 14 The Court did not find that the application of the employment restrictions to the applicants under the Act encroached upon their right to freedom of expression, and that Article 10 was not applicable. Finding, therefore, that there was no scope for the application of Article 14 in conjunction with Article 10, the Court held that there had been no violation of Article 10, taken alone or in conjunction with Article 14.

11 Article 41 The Court awarded each of the applicants 7,000 euros (EUR) in respect of pecuniary and non-pecuniary damage, and EUR 2, and EUR 2, respectively for costs and expenses. 3. Comment In this case the Court found that there had been a violation of the prohibition of discrimination contained in Article 14, in conjunction with Article 8. The majority found that a far-reaching ban on taking up private-sector employment, such as the one imposed on the applicants, affected their private life under Article 8. Article 14 was therefore applicable. The Court examined in this context a number of similar laws from jurisdictions with post-communist regimes. Such laws are not per se a violation of the Convention, however in this case the ban was a disproportionate measure, and the Court found a breach of Article 14 taken together with Article 8. Three of the judges issued separate opinions to the judgment. They all pointed out that both the applicants had worked for the KGB and had never contested that the activities of the KGB were contrary to principles guarantees by the Lithuanian Constitution and by the European Convention on Human Rights. Everyone, one of the judges stated, has to accept the consequences of his/her actions in life. In addition, the judges pointed out that it was wrong to compare persons who had worked for the KGB to those who had not. For Article 14 to have been violated, it has to be established that the situation of the applicant could be considered similar to that of person who had been treated better the judges maintained that people who had worked for the KGB were not in a similar situation to those who had not. Even though the judges in their separate opinions stated that there had been no violation of Article 14, they still found that Article 8 was applicable and that this provision had been violated on its own, as the interference with the applicants right to respect for their private life was disproportionate.

12 1. Principal facts Supervisory review proceedings after a judgment becomes final JUDGMENT IN THE CASE OF NIKITIN v. RUSSIA 5 (application no /99) 20 July 2004 The applicant, Aleksandr Konstantinovich Nikitin, is a Russian national, who was born in 1952 and lives in Russia. In February 1995, the applicant, a former navy officer, joined the environmental project of a Norwegian non-governmental organisation, Bellona, to work on a report entitled The Russian Northern Fleet. Sources of Radioactive Contamination. On 5 October 1995 the Murmansk office of Bellona was searched by the Federal Security Service ( the FSB ). The FSB seized the draft report, interrogated the applicant and instituted criminal proceedings on suspicion of treason, as the draft report allegedly contained information about accidents on Russian nuclear submarines classified as officially secret. The applicant was tried for treason through espionage and aggravated disclosure of an official secret. On 29 December 1999 he was acquitted. On 17 April 2000 the Supreme Court of the Russian Federation upheld the acquittal, which became final. On 30 May 2000 the Prosecutor General lodged a request with the Presidium of the Supreme Court to review the case in supervisory proceedings. He called for a reassessment of the applicable law, of the facts and evidence on the case file, and for its remittal for fresh investigation. On 13 September 2000 the Presidium of the Supreme Court dismissed the prosecutor s request and upheld the acquittal. 2. Decision of the Court The applicant alleged that supervisory review proceedings conducted after his final acquittal constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted, relying on Articles 4 of Protocol No. 7 (right not to be tried or punished twice). He alleged that he was at least liable to be tried again on the same counts. He also complained that the supervisory review proceedings were in breach of Article 6 1 (right to a fair trial). Article 4 1 of Protocol No. 7 and Article 6 1 The European Court observed that the applicant was not tried again and was not liable to be tried twice; the supervisory review could be considered a re-opening of a finally decided criminal case on the grounds of new or newly-discovered evidence or a fundamental defect which was in accordance with Article 4 1 of Protocol No This judgment is not final, see fn.1.

13 Concerning the applicant s complaint under Article 6, the Court reiterated that Article 6 did not apply to proceedings concerning a failed request to re-open a case. Only the new proceedings, after the re-opening has been granted, could be regarded as concerning the determination of a criminal charge. The Court therefore held that there had been no violation of Article Comment In this case the Court examined whether the prosecutor s request for supervisory review of the acquittal of the applicant violated the Convention. Firstly, the Court considered the case under Article 4 of Protocol 7. This provision states that no one shall be tried or punished again in criminal proceedings for an offence for which he/she has been finally acquitted or convicted. The Article only applies to a final conviction, and does not prevent a person from being tried and convicted for the same offence in two different jurisdictions. The Court found that there had been no violation of this provision in the present case, as the supervisory review procedure did not actually amount to a second trial, but should be viewed as a re-opening of the case. The second paragraph of Article 4 of Protocol 7 explicitly provides for such re-opening if it is carried out in accordance with the law of the State concerned. As the applicant was not liable to be tried or punished again, there was no breach of Article 4 Protocol 7. In his separate concurring opinion, Judge Loucaides agreed that there had been no violation of this provision, but that this was because the applicant could not be considered a victim as the request for re-opening had been dismissed. The Court has previously examined the effects of quashing a judgment on supervisory review in a civil context (see Ryabykh v. Russia, 24 July 2003, reported in Bulletin August 2003). In that particular case, the Court held that the supervisory review procedure had nullified an entire judicial process that had ended in a legally binding decision, and that there had been a violation of Article 6. In the present case, the applicant had also alleged a violation of Article 6. The Court firstly pointed out that supervisory review in criminal cases differed from that of civil, as requests to impose the procedure could only be made during one year following the date of acquittal, whilst judgments in civil cases remained open to review indefinitely. Further, the request for re-opening was not prejudicial for the determination of the criminal charges against the applicant, and as the outcome of the proceedings was favourable to the applicant, he could not be considered to be a victim. In addition, proceedings concerning a failed request to re-open proceedings do not determine a criminal charge, and Article 6 was therefore not applicable. The Court might have reached a different conclusion in this case if the request had been granted and the applicant actually convicted of the charges in question. However, since this case was decided by the Russian courts, a new Code of Criminal Procedure has been adopted. Prosecutors powers have been restricted, and acquittals are no longer subject to the supervisory review procedure. However the Court held in an admissibility decision earlier this year (Berdzenishvili v. Russia, 29 January 2004) that the supervisory review procedure was not an effective remedy and therefore did

14 not need to be exhausted by an applicant who wished to pursue his case before the European Court of Human Rights.

15 OTHER JUDGMENTS 6 Article 3 Krastanov v. Bulgaria (prohibition of inhuman treatment, length of criminal proceedings) Violation of Article 3 and Article 6 1 Article 5 Kotsaridis v. Greece (right to liberty and security, right to a fair trial) Violation Article 5 4 and Article 6 1 Kuibishev v. Bulgaria and Zaprianov v. Bulgaria (right to liberty and security of person, length of criminal proceedings) Violation of Article 5 3 and 4, No violation of Article 6 1 Nikolova v. Bulgaria (no. 2) (right to liberty and security, right to a fair trial) Violation of Article 5 3 and 4 and of Article 6 1 Article 6 Subiali v. France (length of criminal proceedings) Violation of Article 6 1 Ţîmbal v. Moldova (right to a fair trial, protection of property) Violation of Article 6 1 and of Article 1 of Protocol No. 1 Marszał v. Poland (length of civil proceedings) Violation of Article 6 1 Santambrogio v. Italy (right to a fair trial) No violation Article 6 1 Dimitrov v. Bulgaria (length of civil proceedings, right to an effective remedy) Violation Article 6 1 and Article 13 Osmanov and Yuseinov v. Bulgaria (length of criminal proceedings, right to an effective remedy) Violation Article 6 1 and Article 13 Rachevi v. Bulgaria (length of civil proceedings, right to an effective remedy) Violation Article 6 1 and Article 13 Agathos and 49 Others v. Greece (length of civil proceedings) Violation Article 6 1 Yemanakova v. Russia (length of civil proceedings, right to an effective remedy) Violation Article 6 1 and Article 13 Loiseau v. France (right to a fair trial) No violation of Article 6 1 Marschner v. France (length of criminal proceedings) Violation of Article 6 1 Tamás Kovács v. Hungary (length of criminal proceedings) Violation of Article 6 1 Koblański v. Poland (length of criminal proceedings) Violation of Article 6 1 Mancheva v. Bulgaria (right to a fair trial, protection of property) Violation of Article 6 1 and of Article 1 of Protocol No. 1 Pramov v. Bulgaria (right to a fair trial) Violation of Article 6 1 Murat Kılıç v. Turkey (right to a fair trial) Violation of Article 6 1 Article 10 Feridun Yazar and Others v. Turkey (freedom of expression, right to a fair trial) Violation Article 10 and Article 6 1 Sabou and Pîrcălab v. Romania (freedom of expression, right to respect for family life, right to an effective remedy) Violation Article 10, Article 8 and Article 13 6 Some of these judgments are not final, see fn.1.

16 Article 1 Protocol 1 Schirmer v. Poland (protection of property) Violation of Article 1 of Protocol No. 1 Kopecký v. Slovakia (protection of property) No violation of Article 1 of Protocol No.1