Forthcoming judgments

Transcription

1 issued by the Registrar of the Court ECHR 302 (2014) Forthcoming judgments The European Court of Human Rights will be notifying in writing ten judgments on Tuesday 28 October 2014 and nine on Thursday 30 October Press releases and texts of the judgments will be available at 10 a.m. (local time) on the Court s Internet site ( Tuesday 28 October 2014 Panju v. Belgium (application no /09) The case concerns the length of criminal proceedings, which have remained at the judicial investigation stage for more than eleven years. The applicant, Zulfikarali Panju, is a Canadian national who was born in 1943 and lives in Bukavu (Democratic Republic of the Congo). Mr Panju was arrested on 19 November 2002 on suspicion of illegal trafficking in gold and money laundering. The 50 kg of gold he was carrying at the time was confiscated and his Belgian bank accounts frozen. He was later granted conditional release. In 2005, 2006 and 2007 Mr Panju lodged three applications with the Indictments Division of the Court of Appeal of Brussels under the Code of Criminal Procedure, complaining about the length of the proceedings against him. The court, after finding that the period was not abnormal in view of the extent and complexity of the case, acknowledged that Mr Panju was rightly complaining about delays in the proceedings. However, it pointed out that although it had jurisdiction to review the proper conduct of judicial investigations it did not have the power to instruct the public prosecutor to make submissions. The judicial investigation is still pending. Relying on Article 6 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy) of the European Convention on Human Rights, the applicant complains about the lack in the Belgian legal system of an effective remedy by which to complain about the length of the criminal proceedings against him and alleges that those proceedings were not conducted within a reasonable time. Cavani v. Hungary (no. 5493/13) The case concerns the Hungarian authorities failure to enforce a father s access rights to his two daughters, despite him having been granted exclusive custody in Italy. The applicants in this case are Francesco Cavani, an Italian national born in 1971, and his two daughters, Ester Cavani and Anna Maria Cavani, who were born in 2003 and 2004 respectively and who both hold dual Hungarian and Italian nationality. Francesco Cavani lives in Formigine (Italy). Ester and Anna Maria Cavani are currently apparently living with their mother, a Hungarian national and Mr Cavani s ex-wife, in or near Budakeszi (Hungary). In 2004 Ester and Anna Maria were taken by their mother from Italy, where the family were living at the time, to Hungary. The mother having refused to return with the daughters to Italy, Mr Cavani brought proceedings before both the Hungarian and Italian courts. In November 2005 the Hungarian courts ordered the return of Mr Cavani s daughters to Italy. The enforcement of that order remains unenforced to date: the mother was arrested in July 2010 on the basis of a European arrest warrant

2 but was released shortly after without Mr Cavani being reunited with his daughters or their whereabouts being established; she was also sentenced to a 200-day fine in her absence in October In the meantime, the Italian courts granted Mr Cavani exclusive custody of his daughters and annulled the marriage between Mr Cavani and his ex-wife. Mr Cavani also subsequently withdrew a criminal suit for child abduction before the Italian courts in the hope of appeasing the situation and allowing his ex-wife to travel freely to Italy with is daughters. Relying on Article 8 (right to respect for private and family life) of the European Convention, Mr Cavani and his daughters complain that the Hungarian authorities have repeatedly failed to enforce the legally binding decision of November 2005, with the result that they have not been able to see one another since 2005, even occasionally. Urtāns v. Latvia (no /11) The case concerns the system in Latvia of authorisation of pre-trial detention by investigating judges. The applicant, Rolands Urtāns, is a Latvian national who was born in 1973 and is currently serving a sentence in Daugavgrīva Prison (Latvia). Mr Urtāns was arrested in September 2010 on suspicion of two burglaries. Five detention orders were subsequently issued against him, on the ground that he was likely to commit another criminal offence if released. He was ultimately released in August 2011 as the maximum length 12 months of pre-trial detention permitted under national law had almost expired. The criminal proceedings against him are still pending before the national courts. Relying on Article 5 1 (c) (right to liberty and security), Mr Urtāns alleges that there was no reasonable suspicion that he had committed the offences with which he was initially charged, and that his continued detention was unlawful because the initial suspicion against him decreased over the period of almost one year he had spent in pre-trial detention. Ślusarczyk v. Poland (no /04) The applicant, Dariusz Ślusarczyk, is a Polish national who was born in 1971 and lives in Będzin (Poland). The case mainly concerns his complaint about the regime in Polish prisons for detainees who are classified as dangerous and about inadequate conditions of detention. Mr Ślusarczyk was detained on remand in three sets of criminal proceedings, the first involving, among other things, robbery, theft and causing bodily harm and the second and third robbery, battery and extortion committed in an organised criminal group. He was arrested in December 2000 in the first set of proceedings and released in March 2010 under police supervision in the third set of proceedings. He was detained, without interruption, under detention orders during the firstinstance and appellate proceedings against him for a total of nine years and four months. Relying on Article 3 (prohibition of inhuman or degrading treatment), he complains that, a remand prisoner between May 2004 and November 2005, he was classified as a so-called dangerous detainee and subjected to high-security measures, including daily strip-searches and shackling on leaving his cell. He further complains under Article 3 about the inadequate conditions of his detention when he was not subjected to the high-security regime, notably on account of overcrowding and lack of hygiene. He further complains under Article 5 3 (right to liberty and security) and Article 6 1 (right to a fair trial within a reasonable time) about the excessive length of both his pre-trial detention as well of as of the criminal proceedings against him. Lastly, he alleges censoring of his correspondence by the prison authorities, in breach of Article 8 (right to respect for private and family life, the home and the correspondence). 2

3 Ion Cârstea v. Romania (no /06) The applicant, Ion Cârstea, is a Romanian national who was born in 1949 and lives in Craiova (Romania). The case concerns the publication on 8 September 2001 in a local newspaper, Republica Oltenia, of an article about Mr Cârstea, a university professor, which described in detail an incident in his sex life 19 years before and accusing him of bribery, blackmail, child sex abuse and sexual deviance. The article included pictures of Mr Cârstea, nude and having sex. Mr Cârstea brought defamation proceedings before the national courts against the journalist and editor-in-chief of the newspaper, claiming compensation for serious damage to his reputation. Both defendants were acquitted during the proceedings and the compensation claim rejected. Finally, in November 2005, Mr Cârstea s appeal on points of law was dismissed as ill-founded, on the ground that the article, although defamatory, had been written to draw attention to the behaviour of a public figure, a university professor, and to expose what was going on backstage in a higher education institution. Relying in particular on Article 8 (right to respect for private and family life), Mr Cârstea alleges that the domestic courts failed to protect his reputation following the publication of the article and accompanying pictures. He notably submits that the courts failed, when assessing his complaint, to verify the truthfulness of the facts contained in the article. Tirean v. Romania (no /10) The applicant, Gheorghe Tirean, is a Romanian national who was born in He is currently serving a four-year prison sentence in Timişoara Prison (Romania) following his conviction in December 2011 for aggravated fraud and organising a criminal group. The case mainly concerns his complaint about the conditions of his detention. He alleges in particular overcrowding in Aiud, Gherla, Rahova, Jilava, Slobozia, Dej and Miercurea-Ciuc Prisons without segregation of smokers and non-smokers and poor transport conditions when he was transferred between those facilities. He further alleges that he was beaten up by police officers during the criminal investigation against him and that the medical care during his pre-trial detention was inadequate. He relies on Article 3 (prohibition of inhuman or degrading treatment). Peltereau-Villeneuve v. Switzerland (no /09) The applicant, Benoit Peltereau-Villeneuve, is a Swiss national who was born in 1958 and lives in Juvigny-en-Perthois (France). The case concerns an alleged breach of his right to be presumed innocent on account of terms used by the public prosecutor in a discontinuance decision finding that the criminal proceedings against him were time-barred. In 2008 proceedings were opened against Mr Peltereau-Villeneuve, a clergyman with the status of archpriest, on suspicion of sexual abuse. In a decision of 25 September 2008 the Principal Public Prosecutor for the Canton of Geneva discontinued the proceedings. He found that the applicant had committed, against at least two victims, the offence of exploitation of a person in a position of need or dependency, but that as the events dated back to 1991 and 1992 the charges were time-barred. The decision was referred to in a press report, which stated that the applicant had committed those acts and had confessed to them. He unsuccessfully applied to have the decision of 25 September 2008 set aside. Canonical proceedings were conducted against Mr Peltereau-Villeneuve between January 2008 and December 2012, during which the terms of the 25 September 2008 decision were quoted several times. A penalty imposed on the applicant requiring him to resign from the clergy was finally annulled and the Employment Tribunal ordered the Roman Catholic Church of Geneva to pay the applicant 1 Swiss franc in compensation for non-pecuniary damage. 3

4 Relying on Article 6 2 of the Convention (presumption of innocence), the applicant alleges that the terms used by the Principal Public Prosecutor in his decision discontinuing the criminal proceedings against him as time-barred had breached his right to be presumed innocent. Hebat Aslan and Firas Aslan v. Turkey (no /09) The applicants, Hebat Aslan and Firas Aslan, are Turkish nationals who were born respectively in 1987 and 1988 and live in Istanbul. The case concerns criminal proceedings against individuals suspected of taking part in actions committed in the name of the illegal organisation PKK (Kurdistan Workers Party). The applicants were arrested in that context on 31 December 2008, then questioned on 3 January 2009 by the public prosecutor and brought before a judge, who remanded them in custody. They applied to have that decision set aside but the Assize Court dismissed their application on 9 January A fresh request by the applicants for their release was dismissed after a hearing of 4 October 2012, on account of strong suspicions that they had committed the offence as charged and the risk that they might abscond in view of the possible sentence, together with the classification of the offence as arrestable under Article of the Code of Criminal Procedure. On 15 October 2012 the Assize Court again dismissed an appeal by the applicants against that decision, ruling on the basis of the case file and in line with the public prosecutor s opinion, which had not been notified to the applicants. They lodged a constitutional appeal and obtained compensation for the nonpecuniary damage sustained on account of the length of their pre-trial detention and for the failure to provide them with the public prosecutor s opinion, thus preventing them from being able to comment on it. The Constitutional Court dismissed, however, their complaint that there had been no hearing. The criminal proceedings against the applicants are still pending. Firas Aslan has been released and Hebat Aslan placed under judicial supervision. Relying on Article 5 3, 4 and 5 (right to liberty and security / right to a speedy decision on the lawfulness of detention), the applicants complain about the lack of reasoning for the dismissal of their appeal and for the extension of their detention, about the failure to hold a hearing for the examination of their appeal on 9 January 2009, and about the failure to notify them of the public prosecutor s opinion. They add that the decision of the judge at the Istanbul Assize Court to limit the access of suspects and their lawyers to the investigation file so as not to undermine the conduct of the investigation had prevented them from effectively challenging the decision to remand them in custody. Lastly, they complain that they did not have any effective remedy by which to obtain compensation. İbrahim Demirtaş v. Turkey (no /10) The applicant, İbrahim Demirtaş, is a Turkish national who was born in 1947 and lives in Isparta (Turkey). The case concerns the time-barring of the criminal proceedings against individuals charged with acts of violence against Mr Demirtaş. On 5 February 2002, the applicant, who had the status of muhtar (head of the village), went with officials from the regional directorate of forests to a classified forest area near the village to identify, for the purpose of replanting trees, zones which had been cultivated. He was assaulted by two villagers who were illegally occupying the classified forest area. Medical reports established that the applicant was suffering from a fractured jaw. Following the proceedings against the two villagers, they were found guilty of wounding. On 21 October 2009 the Court of Cassation declared that those proceedings were time-barred. Relying on Article 6 (right to a fair hearing within a reasonable time), Mr Demirtaş complains that the domestic authorities were slow to conduct the criminal proceedings against the perpetrators of the acts of violence that he had sustained. 4

5 Gough v. the United Kingdom (no /11) The applicant, Stephen Peter Gough, is a British national who was born in 1959 and lives in Eastleigh (Hampshire, England). The case concerns his complaint about his repeated, arrest, prosecution, conviction and imprisonment for public nudity. Between 2003 and 2012 Mr Gough was arrested over thirty times in Scotland for being naked in public. He was convicted on a number of occasions of breach of the peace. Although he was at first admonished or received relatively short custodial sentences, the sentences increased with his repeat offending. He was often rearrested as he left prison. As a consequence, between May 2006 and October 2012 (the date on which he left Scotland) Mr Gough enjoyed a total of seven days liberty. He spent most of his detention in segregation because he refused to wear his clothes. Mr Gough complains in particular about the repressive measures taken against him for expressing his opinion on nudity by appearing naked in public places, relying on Article 8 (right to respect for private and family life) and Article 10 (freedom of expression). Thursday 30 October 2014 Palmero v. France (no /11) The applicant, Claude Palmero, is a citizen of Monaco who was born in 1956 and lives in Monte- Carlo. On 28 December 2004 Mr Palmero sued the State, under Article L. 781 of the Code of Judicial Organisation, on behalf of his father, who had died in December Mr Palmero complained about the criminal proceedings against his father, alleging in particular that the length of the proceedings had been unreasonable. Mr Palmero s suit against the State was dismissed, as was his appeal on points of law in Relying on Article 6 1 (right to a fair hearing within a reasonable time), Mr Palmero complains in particular about the length of the criminal proceedings against his father and also the length of the proceedings he brought against the State. Sociedade de Construções Martins & Vieira, Lda. and Others v. Portugal (nos /10, 59856/10, 72525/10, 7646/11, and 12592/11) The applicants in this case are Sociedade de Construções Martins & Vieira, Lda, a Portuguese limited liability company, and its managing partners, Maria do Céu da Costa Vieira and João Martins Gonçalves Costa, two Portuguese nationals, who were born in 1943 and 1948 and live in Carvalhal and Barcelos (Portugal) respectively. In December 1999 the applicants were made defendants in two sets of proceedings on charges of tax fraud. Both sets of proceedings are currently still pending, having already lasted 14 years and nine months at one level of jurisdiction. These fiscal criminal proceedings were notably suspended in November 2006 and April 2007, respectively, pending the outcome of parallel proceedings brought by the applicants for judicial review of the tax adjustment of the applicant company s fiscal activity between 1994 and Relying in particular on Article 6 1 (right to a fair trial within a reasonable time) and Article 13 (right to an effective remedy), the applicants complain about the excessive length of the fiscal criminal proceedings against them. Davydov v. Russia (no /07) The case concerns the quashing in supervisory-review proceedings of a binding and enforceable judgment. 5

6 The applicant, Pavel Davydov, is a Russian national who was born in 1962 and lives in Saransk (Republic of Mordovia, Russia). In November 2005 Mr Davydov was awarded compensation for damage to his health caused during his service in the police force. The judgment was not appealed against and became final. However, in October 2006 this final judgment was quashed by way of supervisory review on the grounds that the lower court had erred in law, the Presidium of the Supreme Court finding that Mr Davydov was no longer entitled to compensation but insurance payments. Relying on Article 6 1 (right to a fair hearing) and Article 1 of Protocol No. 1 (protection of property), Mr Davydov complains that the quashing of the domestic courts binding and enforceable judgment in his favour breached the principle of legal certainty. Nosko and Nefedov v. Russia (nos. 5753/09 and 11789/10) The case concerns allegations of police entrapment. The applicants, Alla Nosko and Nikolay Nefedov, are Russian nationals who were born in 1960 and 1951 respectively and live in Zarechnyy, in the Penza Region and Cheboksary, the Chuvash Republic (both in Russia). Both applicants were targeted in undercover operations, which led to their criminal convictions in May 2008 and May 2009 respectively. Ms Nosko, a dermatologist-venerologist in a hospital, was convicted of bribery for issuing a false sick-leave certificate in November 2007 to a patient, an undercover police agent, in exchange of money. Mr Nefedov, a narcology psychiatrist, was convicted of abetting bribery when an inebriated man, an undercover police agent, had been brought to his clinic in July 2008 by traffic police and he had accepted to arrange for his blood alcohol test to be altered in exchange of money. Both applicants argued during the proceedings against them that they would never have become involved in accepting bribes without having been lured into it by the police and their informants. In particular, Ms Nosko had only taken the money because she thought it was a gift from a grateful patient, who had been brought to her clinic by a long-time colleague; and Mr Nefedov had only accepted the money when the undercover officer had pleaded for his help, saying that he would lose his driving licence and his job and would not be able to support his family if the blood test was positive. The national courts, however, dismissed the applicants pleas of entrapment. Relying on Article 6 1 (right to a fair trial), both applicants allege that their convictions for briberelated offences were unfair because they had been pressured into committing the crimes by the police. Sigarev v. Russia (no /10) The case concerns the pre-trial detention of a high-ranking police officer. The applicant, Yevgeniy Sigarev, is a Russian national who was born in 1958 and lives in Kursk (Russia). On 16 December 2008 Mr Sigarev, a high-ranking police officer at the time, was arrested on suspicion of misappropriation of funds and abuse of power. On 23 July 2010 he was found guilty of two counts of abuse of power and two counts of embezzlement and sentenced to four and a half years imprisonment. He was released on parole in April Relying on Article 5 1 (c) and 3 (right to liberty and security), he submits that his pre-trial detention, as authorised by court orders in December 2009 and January 2010, ended on 14 March 2010 and that his subsequent detention until the next court order was issued on 15 March 2010 was therefore unlawful. Further relying on Article 5 3 (entitlement to trial within a reasonable time or to release pending trial), he also complains that his pre-trial detention was unreasonably long. 6

7 Shvydka v. Ukraine (no /12) The applicant, Galyna Shvydka, is a Ukrainian national who was born in 1948 and lives in Kyiv. The case concerns her detention for ten days for tearing a ribbon from a wreath which had been laid by the President of Ukraine during a ceremony. On 24 August 2011 Ms Shvydka, a member of an opposition political party, took part in a ceremony on the occasion of the country s Independence Day. The then President of Ukraine, V. Yanukovych, attended the ceremony and laid a wreath. After the ceremony Ms Shvydka detached from the wreath part of the ribbon bearing the words the President of Ukraine V.F. Yanukovych in order to express her disagreement with his policies. She was subsequently found guilty on 30 August 2011 of petty hooliganism and sentenced to ten days administrative detention. She appealed against her conviction and sentence on the first day of her detention. Three weeks later the appeal court upheld the first-instance decision. By that time she had served her sentence in full as an appeal had no suspensive effect when a minor offence, such as the offence she had committed, was sanctioned by a term of administrative detention. Relying on Article 10 (freedom of expression), she complains that her detention for ten days for detaching a ribbon, which was her way of expressing her political opinion, was excessive. Also relying on Article 2 of Protocol No. 7 (right of appeal in criminal matters), she also complains that the examination of her appeal only took place after she had already served her sentence in full. Repetitive case The following case raises issues which have already been submitted to the Court. Bogomolov v. Russia (no /12) The applicant in this case complains about the conditions of his detention on remand in the Moscow Region pending criminal proceedings against him and about him not being present at the appeal hearing on his case. He relies on Article 3 (prohibition of inhuman or degrading treatment) and Article 6 1 (right to a fair trial). Length-of-proceedings cases In the following cases, the applicants complain in particular about the excessive length of (noncriminal) proceedings. Moutsatsos and Others v. Greece (nos /13, 33319/13, 33327/13, 33336/13, 33851/13, 33904/13, 33918/13, 33925/13, 34011/13, and 35820/13) Mendes v. Portugal (no /13) This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on To receive the Court s press releases, please subscribe here: or follow us on Press contacts echrpress@echr.coe.int tel: Tracey Turner-Tretz (tel: ) Céline Menu-Lange (tel: ) Nina Salomon (tel: ) Denis Lambert (tel: ) 7

8 The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. 8