CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 3 décembre 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s1471466 { margin-top:0pt; margin-left:252pt; margin-bottom:0pt; text-indent:-252pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s36813682 { width:24.57pt; text-indent:0pt; display:inline-block } .s14ABCEBA { width:80.23pt; text-indent:0pt; display:inline-block } .s7F6164FC { width:6.76pt; text-indent:0pt; display:inline-block } .sB90FF49 { width:134.79pt; display:inline-block } .s77008F62 { width:98.12pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     614   3.12.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING FRANCE AND ROMANIA   The European Court of Human Rights has today notified in writing the following four Chamber judgments, none of which is final. [1] (These judgments are in French only.)   Section 2   (1)     Smoleanu v. Romania (no. 30324/96)     Violation Article 6 § 1 No violation Article 1 of Protocol No. 1 Elena Smoleanu is a Romanian national. She was born in 1922 and lives in Ploieşti.   In 1950, under Decree no. 92/1950, the State nationalised a house converted into two flats, a garage and adjoining land which the applicant had received as a dowry from her father in 1944.   The applicant first lodged an application for recovery of possession, which was granted by   Prahova County Court. That court’s judgment was quashed, however, on 13 June 1995 by   Ploieşti Court of Appeal on the ground that the courts did not have jurisdiction to examine application of the nationalisation decree.   In March 1996 the applicant lodged an application for restitution of property under Law no.   112/1995. The Administrative Board returned to the applicant the flat she had occupied as a tenant and awarded her compensation for the rest of the house and land, but dismissed her application in respect of the garage. The applicant, who considered that the compensation she had received was less than the value of the property, lodged a complaint with Ploieşti Court of First Instance. Examination of her complaint was adjourned because a second application for recovery of possession had been lodged at the same time. That application was refused on 30 March 1998 by Ploieşti Court of Appeal on the ground that the fact that the applicant had lodged an application for restitution meant that she accepted that the nationalisation had been lawful. The application for restitution resulted in the Administrative Board’s decision being upheld.   Relying on Article 6 § 1 of the European Convention on Human Rights (right of access to a court), the applicant complained of the Court of Appeal’s refusal to recognise that the courts had jurisdiction to determine an action for recovery of possession. She further complained, under Article 1 of Protocol No. 1 (protection of property), that the Court of Appeal’s judgments had infringed her right to peaceful enjoyment of her possessions.   Referring to its case-law on that point, the Court ruled that the dismissal of the applicant’s action for recovery as a result of the Court of Appeal’s judgment of 13 June 1995 had in itself infringed the right of access to a court, guaranteed by Article 6 § 1 of the Convention. In addition, by holding in its judgment of 30 March 1998 that it was not necessary to determine an action for recovery because another appeal about the disputed property was pending, the Court of Appeal had likewise denied the applicant the right of access to a court. Consequently, the Court held unanimously that there had been a violation of Article 6 § 1 in these two respects.   The Court noted that the applicant could claim to be the victim of an infringement of her right of property only in respect of that part of the property which had not been returned to her. It observed in the first place that it did not have jurisdiction to examine the circumstances or continuing effects of nationalisation, which had taken place before the date when the Convention came into force with regard to Romania, namely 20 June 1994. It further noted that the actions brought by the applicant did not relate to a “present possession” and that she had not established that she had a “legitimate expectation” of securing recovery of that part of the property in respect of which her claims had not been upheld by the domestic courts. It accordingly held unanimously that there had been no violation of Article 1 of Protocol No. 1. The Court awarded the applicant 5, 000 euros (EUR) for non-pecuniary damage.   (2)     Lindner and Hammermayer v. Romania (no. 35671/97)   Violation Article 6 § 1 No violation Article 1 of Protocol No. 1 Article 2 of Protocol No. 4: inadmissible Alexandru Lindner and Cristina Hammermayer are two Romanian nationals living in Frankfurt (Germany).   In their capacity as beneficiaries of their mother’s estate, they brought an application for recovery of possession of property situated in Bucharest comprising three flats purchased by their mother in 1939 and confiscated by the State in 1975 under Decree no. 223/1974.   The Bucharest Court of First Instance granted their application on the ground that the administrative decision to confiscate the property had been unlawful because it had not been served on their mother. However, on an appeal by Bucharest City Council, the Bucharest Court of Appeal dismissed the applicants’ claim, holding that they could avail themselves only of the provisions of Law no. 112/1995 on the restitution of certain nationalised property.   Relying on Article 2 of Protocol No. 4 (freedom of movement), the applicants submitted that the confiscation had been determined by the fact that their mother had emigrated to Germany in 1975. They further complained, under Article 6 § 1 (right of access to a court), of the Court of Appeal’s refusal to accept that the courts had jurisdiction to determine an action for recovery of possession. They also complained that the Court of Appeal’s judgment had interfered with their right to peaceful enjoyment of their possessions and relied in that connection on Article 1 of Protocol No. 1 (protection of property).   As Romania had ratified the Convention on 20 June 1994, the complaint of a violation of Article   2 of Protocol No. 4 as regards the applicants’ mother’s freedom of movement in 1975 fell outside the jurisdiction of the Court, which accordingly declared it inadmissible.   The Court noted that the Court of Appeal had not examined any of the applicants’ arguments and had asked them to apply to the Administrative Board to determine their restitution claim. The fact that the Court of Appeal had found that the confiscation had been effected “by warrant” did not permit the conclusion that it had reviewed the lawfulness of the confiscation order. It followed that the Court of Appeal had excluded the applicants’ action for recovery of possession from the jurisdiction of the courts, in breach of Article 6 § 1 of the Convention.   As regards the complaint of an infringement of the right of property, the Court observed that on account of the date on which the Convention came into force with regard to Romania it did not have jurisdiction to examine the circumstances or continuing effects of the confiscation. It further noted that the proceedings brought by the applicants did not relate to a “present possession” and that they had not established that they had a “legitimate expectation” of securing recovery of the disputed property. The Court accordingly held unanimously that there had been no violation of Article 1 of Protocol No. 1. It awarded the applicants EUR 5,000 for non-pecuniary damage and EUR 400 for costs and expenses.   (3)     Berger v. France (no. 48221/99)   Violation Article 6 § 1 Marie-Thérèse Berger is a French national. She was born in 1932 and lives in Champagny-en-Vanoise.   On 30 September 1991 the applicant signed a leasing arrangement with a company called SOFEBAIL for the renovation of a holiday centre which she wanted to run as a going concern. When the company failed to complete the renovation works within the time-period stipulated in the contract, the applicant lodged a criminal complaint and application to join the proceedings as a civil party seeking damages for fraud, theft and fraudulent breach of trust. The investigating judge, who considered that the case did not fall within the ambit of the criminal law but was clearly a civil or commercial case, made an order on 5 May 1997 discontinuing the proceedings.   After Colmar Court of Appeal had dismissed an appeal lodged by the applicant, she appealed to the Court of Cassation. The reporting judge’s report (containing a statement of the facts, the procedure and the grounds of appeal, a legal analysis of the case and an opinion on the merits of the appeal) was sent to the Advocate-General before the hearing, but not to the applicant. In a judgment of 24 September 1998 the Court of Cassation declared the appeal inadmissible on the ground that, in the absence of an appeal on points of law by State Counsel’s office, it was incumbent on the applicant to show that she satisfied the conditions for lodging such an appeal laid down in Article 575 of the Code of Criminal Procedure.   In the meantime the applicant had instituted civil proceedings challenging the termination of the lease by SOFEBAIL. Her action was dismissed by the tribunals of fact. Those proceedings are currently pending before the Court of Cassation.   Relying on Article 6 (right to a fair trial), the applicant complained that the criminal proceedings in which she had been a civil party had been unfair. She submitted that the Court of Cassation’s judgment had infringed her right of access to a court. She further alleged that there had been a breach of the principle of equality of arms because the reporting judge’s report had not been sent to her lawyer.   As regards the inadmissibility of the applicant’s appeal on points of law, the Court noted that the applicant could have discovered the rules governing appeals to the Court of Cassation by reading Article 575 of the Code of Criminal Procedure, which laid down seven cases in which it was possible for civil parties to lodge such an appeal alone in the absence of an appeal by State Counsel’s office. The resulting restriction was necessitated by the very nature of the judgments given by investigating judicial bodies and by the role accorded to civil actions within criminal trials. The Court could not accept that civil parties should have an unlimited right to appeal on points of law against judgments upholding discontinuation orders.   The Court further noted that the cassation proceedings followed examination of the applicant’s case first by the investigating judge and then by the Indictment Division of the Court of Appeal. Moreover, while declaring the appeal inadmissible, the Court of Cassation had examined it to review the lawfulness of the impugned decision. Lastly, the Court noted that the applicant had been able to seek compensation for her alleged loss through the civil courts. Consequently, the Court considered that the applicant had not suffered any restriction of her right of access to a court. It could not agree that the principle of equality of arms had been infringed, regard being had to the role accorded to civil actions within criminal trials and to the complementary interests of civil parties and State Counsel’s office. In that connection, the Court accepted that a civil party could not be considered either the opponent or ally of the prosecution, their roles and objectives being clearly different. The Court therefore held unanimously that there had been no violation of Article 6 § 1 on account of the ruling that the appeal on points of law was inadmissible.   As regards the complaint that the reporting judge’s report had not been sent to the applicant, the Court observed that because of the report’s importance, the role of the Advocate-General and the consequences of the outcome of the proceedings for the applicant, the resulting imbalance infringed the principles of adversarial procedure and equality of arms. It accordingly held unanimously that there had been a violation of Article 6 § 1 in that respect. It considered that the finding of a violation in itself constituted sufficient just satisfaction and awarded the applicant EUR 300 for costs and expenses.   (4)     Debbasch v. France (no. 49392/99)   No violation Article 6 § 1 Charles Debbasch is a French national. He was born in 1937 and lives in Paris. He is a professor of law at Aix-en-Provence University and was President of the Vasarely Foundation, founded by the painter Victor Vasarely, for ten years.   Following a number of complaints by Mr Vasarely and his children, the applicant was charged on 28 November 1994 with misappropriating funds and works of art to the detriment of the Foundation or the Vasarely family. On 20 February 2002 the applicant was sentenced to three years’ imprisonment, one year of which was suspended, and to a fine of 380,000 euros. An appeal lodged by the applicant is still pending.   The applicant complained, under Article 6 § 1 (right to a fair trial within a reasonable time), of the length of the criminal proceedings against him (over seven years and eleven months to date).   The Court noted that the case was highly complex and that the applicant, by constantly relying on his procedural rights, had significantly delayed the outcome of the investigation. Noting that the judicial authorities could not be criticised for any unjustified periods of inactivity or delay, the court held unanimously that there had been no violation of Article   6   §   1.   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, 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.